Fourth Circuit Severs Exemption from TCPA on First Amendment Grounds

Robert W. Quinn, Featured Expert Contributor, Communications Regulation

WBK_Attorney_QuinnEditor’s Note: This is Mr. Quinn‘s first commentary as the WLF Legal Pulse‘s featured expert contributor on communications regulation. Mr. Quinn is a Partner in the Washington, DC office of Wilkinson Barker Knauer, LLP. Prior to joining the firm, Mr. Quinn retired from AT&T after over 30 years, serving most recently as Senior Executive Vice-President for Legislative & Regulatory Affairs.

Debt collectors of loans made or guaranteed by the federal government took another big hit in late April when the U.S. Court of Appeals for the Fourth Circuit invalidated the federal government debt collection exemption to the Telephone Consumer Protection Act of 1991 (47 C.F.R. § 227) (“TCPA”) which otherwise bars auto-dialed and pre-recorded telephone calls to mobile telephones (as well as pre-recorded calls to landline telephones) on First Amendment grounds. American Association of Political Consultants, Inc. v. FCC, No. 18-1588, 4th Cir. (Apr. 24, 2019). Continue reading “Fourth Circuit Severs Exemption from TCPA on First Amendment Grounds”

Pennsylvania Supreme Court to Decide Whether Trial Courts May Act as Gatekeepers

Evan M. Tager, Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Jonathan S. Klein, an Associate with the firm.

May a court exclude an expert opinion reliant on scientific studies that offer no meaningful support for the expert’s conclusions? Most federal decisions (including this S.D.N.Y. decision that we recently wrote about here) correctly say “yes.” But in many states, important questions remain about the extent to which a state court can scrutinize the studies that underpin an expert opinion. In Pennsylvania, which continues to apply the Frye general‑acceptance test that preceded Daubert, the Pennsylvania Supreme Court will soon decide how closely trial courts in Pennsylvania can scrutinize the scientific evidence that purportedly underlies the expert opinion.

In Walsh v. BASF, the estate of a long‑time golf‑course groundskeeper, Thomas Walsh, sued nearly three dozen pesticide manufacturers after Walsh died from acute myelogenous leukemia. Unlike in the typical toxic‑tort action, Walsh “kept a diary of the chemicals used on the courses and the dates of their applications.” 191 A. 3d 838, 840 (Pa. Super. Ct. 2018). After years of litigation, Monsanto, Bayer, and several other defendants moved to exclude the opinions of the estate’s two experts on causation. The defendants argued that the studies cited by the  experts failed to support their conclusions and that, at bottom, the experts attempted to pass off as science what amounted to pseudo‑scientific speculation. Continue reading “Pennsylvania Supreme Court to Decide Whether Trial Courts May Act as Gatekeepers”

Supreme Court Leaves Standing for Privacy and Cybersecurity Cases Unresolved

Guest Commentary

visser-michellecohen-david-tgelsomini

By Michelle Visser, a Partner, David Cohen, Of Counsel, and Nicole Gelsomini, an Associate, with Orrick

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Two recent Supreme Court developments—within just a week of each other—highlight both the central role of Article III’s injury-in-fact requirement in privacy and cybersecurity cases and the still-fractured state of the law on the issue of what satisfies that requirement in this area.  First, on March 20, 2019 in Frank v. Gaos, the Court vacated and remanded the Ninth Circuit’s approval of a class action settlement between Google and a class of Google users, directing the lower courts to determine whether the named plaintiffs had suffered a sufficiently concrete injury before approving any settlement.  586 U.S. ___ (2019) (available here).  Frank reinforces that injury in fact is a requirement at all stages of a litigation, even class settlement, but declines to answer whether the plaintiffs, who alleged a statutory violation premised on Google’s sharing of their information but arguably no resulting harm, met that bar.

Five days later, the Court again declined to clarify the injury-in-fact standard in the privacy and cybersecurity context when it denied certiorari in Zappos.com v. Stevens.  Zappos had appealed a Ninth Circuit decision holding that consumers whose personal information was involved in a data breach, but who suffered no resulting financial losses, had Article III standing.  (We previously analyzed the Ninth Circuit’s Zappos decision here.)  A Supreme Court judgment in Zappos would have resolved a circuit split over whether the risk of identity theft or fraud in the wake of a data breach is sufficient to confer standing.  Unfortunately, that resolution will have to wait. Continue reading “Supreme Court Leaves Standing for Privacy and Cybersecurity Cases Unresolved”

When Prescribing Cures for “Overpriced” Drugs, Government’s First Duty Is Do No Harm

By Glenn G. Lammi, Chief Counsel, Washington Legal Foundation’s Legal Studies Division, and Corbin K. Barthold, WLF Litigation Division, Litigation Counsel.

pillsOverpriced. Excessive. Escalating. Gouging. Politicians and talking heads of every political stripe utter such words about the cost of prescription drugs with alarming regularity. Something must be done, they proclaim. But the purported problem is being considered, as so many are in Washington, in a vacuum, with little understanding of a profoundly complex pharmaceutical marketplace. Poorly informed and in a rush to act, regulators and elected officials are proposing cures that not only flout legal and constitutional requirements and protections, but also imperil biomedical progress and the Americans who benefit from it. Continue reading “When Prescribing Cures for “Overpriced” Drugs, Government’s First Duty Is Do No Harm”

Department of Justice Announces First-of-its-Kind Prosecution of Opioid Distributor

Gregory A. Brower, Featured Expert Contributor, White Collar Crime & Corporate Compliance

Brower_GregGregory A. Brower is a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, and a member of Washington Legal Foundation’s Legal Policy Advisory Board.

Federal prosecutors in the Southern District of New York unveiled the unprecedented criminal charges against a major drug distributor and two senior company executives. For the first time, prosecutors deployed federal criminal laws typically used to charge street dealers and major traffickers against an otherwise legal pharmaceutical company and its executives. The alleged illegal criminal conduct spans almost a decade during which time the company, Rochester Drug Co-Operative (“RDC”), saw its sale of oxycodone increase almost tenfold to 42 million doses in 2016. The indictment alleges that top company officials “made the deliberate decision” to not investigate and alert federal regulators to what they knew were pharmacy sales of their products to people who wanted them for nonmedical uses. Continue reading “Department of Justice Announces First-of-its-Kind Prosecution of Opioid Distributor”

Updated Vertical Merger Guidelines May Be on the Horizon

M. Sean Royall, Featured Expert Contributor, Antitrust & Competition Policy — Federal Trade Commission

By M. Sean Royall and Richard H. Cunningham, Partners, and Chris Wilson and Chris Kopp, Associates, Gibson, Dunn & Crutcher LLP

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The Federal Trade Commission (FTC) and Department of Justice’s Antitrust Division (DOJ) promulgated the standing guidance relating to vertical and conglomerate mergers—the Non-Horizontal Merger Guidelines—in 1984.  Relative to the Horizontal Merger Guidelines, which were updated in 2010, this guidance is long in the tooth.

That may soon change.  On March 29, 2019, at the ABA Antitrust Spring Meeting, DOJ Antitrust Division Assistant Attorney General Makan Delrahim noted that the agency has been working to update its vertical merger guidance.  The announcement comes in the wake of several notable enforcement actions involving the combination of businesses that do not compete, but instead operate at different levels of the supply chain, including Comcast/NBCU, AT&T/Time Warner, CVS/Aetna, and Staples/Essendant.

The analytical approach applied to these and other FTC and DOJ vertical merger matters has not been transparent or consistent, and AAG Delrahim acknowledged that the business community would benefit from “knowing where we stand from an enforcement standpoint.”  FTC Chairman Joe Simons generally agreed with this sentiment, but he also cited the challenges in finding a consensus on the appropriate framework for analyzing vertical mergers between the agencies and within the agencies themselves.  The FTC commissioners have split 3-2 along party lines in two recent vertical mergers—Staples/Essendant and Fresenius/NxStage—highlighting the ongoing debate within the FTC.   Continue reading “Updated Vertical Merger Guidelines May Be on the Horizon”

Does DOJ’s Qui Tam Dismissal Policy Go Far Enough?

Featured Expert Contributor, False Claims Act

Stephen_Wood_03032014Stephen A. Wood, Chuhak & Tecson, P.C.

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The False Claims Act confers upon the U.S. Department of Justice the express authority to seek dismissal of cases brought under the qui tam provisions of the Act.  Historically, the Department has exercised its dismissal prerogative exceedingly rarely, usually when the qui tam action disserved the DOJ’s or the affected agency’s interests in a significant way.  In 2018, the DOJ adopted a policy on dismissal of qui tam cases that attempts to standardize the use of this authority across the Department, identifying specific criteria by which to evaluate cases for dismissal.  These criteria by and large involve various circumstances that threaten or at least challenge government interests in some way.

In light of the significant numbers of qui tam cases that fail to make it past summary judgment, however, and the burdens associated with those cases, borne not just by federal agencies, but other involved parties and the courts, the DOJ should do more to seek dismissal of cases that lack merit.  In this sense, the DOJ’s policy on dismissals, although a step in the right direction, falls short of fostering a gatekeeping function that serves interests beyond those of the DOJ and other executive agencies.  A look at a recent example of the DOJ’s failure to pursue dismissal in a case where the evidence reflected lack of merit illustrates the costs of failing to dismiss and should inspire a new, more aggressive approach to the use of this authority. Continue reading “Does DOJ’s Qui Tam Dismissal Policy Go Far Enough?”