Class-Action Lawyers Invoke Novel Doctrine to Avoid SCOTUS Jurisdiction Rulings

supreme courtCivil litigation is waged through a series of small battles between plaintiff’s and defendant’s counsel. One initial battle, which can be outcome-determinative, involves where suit can be filed. Plaintiffs’ lawyers want to be in courts in which “friendly” judges preside, while defense counsel want no part of such jurisdictions. U.S. Supreme Court decisions from the past five years, such as Bristol-Myers Squibb v. Superior Court (BMS), have thrown a monkey wrench into plaintiffs’ lawyers’ jurisdiction battle plans. But without fail, plaintiffs’ lawyers, and particularly those who specialize in class actions, devise new arguments. They have argued, with mixed results in the lower courts, that precedents such as BMS don’t dictate jurisdiction for nationwide class actions. Some class-action lawyers are also relying on a rarely used federal common law doctrine—“pendent personal jurisdiction.” Continue reading “Class-Action Lawyers Invoke Novel Doctrine to Avoid SCOTUS Jurisdiction Rulings”

NJ Supreme Court to Decide Whether Third-Party Manufacturers Have Duty to Warn of Asbestos Exposure

Featured Expert Contributor, Mass Torts—Asbestos

RobertWrightRobert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

In Whelan v. Armstrong International, the New Jersey Supreme Court has agreed to hear an appeal that will decide a manufacturer’s liability for asbestos-containing replacement parts that it did not manufacture or sell.  The Supreme Court granted certification after the Superior Court, Appellate Division, held that a manufacturer has a duty to warn of risks not just from the products it manufactures or sells, but also from asbestos-containing replacement parts necessary for its products to function.  Whelan v. Armstrong International, 190 A.3d 1090 (2018). Continue reading “NJ Supreme Court to Decide Whether Third-Party Manufacturers Have Duty to Warn of Asbestos Exposure”

DOJ Updates Justice Manual to Formalize Guidance about Guidance

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with William E. Moschella, a Shareholder in the firm’s Washington, DC office.

Back in November 2017, then Attorney General Jeff Sessions issued a memorandum entitled “Prohibition on Improper Guidance Documents.”  This Sessions Memo included guidance concerning DOJ’s issuance of guidance that has not gone through the formal rulemaking process.  The Sessions Memo essentially provided that DOJ components may not use guidance documents to create legally binding requirements.  The point was to prohibit agencies from, in effect, creating de facto regulations outside of the formal rulemaking process.

Subsequently, in January 2018, then Associate Attorney General Rachel Brand issued a memorandum acknowledging the Sessions Memo as a “Guidance Policy,” and more specifically directing that Department litigators follow this Guidance Policy in determining the legal relevance of both DOJ and other agencies’ guidance documents in affirmative civil enforcement matters. Continue reading “DOJ Updates Justice Manual to Formalize Guidance about Guidance”

Ninth Circuit Narrowly Vindicates First Amendment in Bellwether Compelled Speech Case

Featured Expert Contributor, First Amendment

By Megan Brown, a Partner with Wiley Rein LLP, with Jeremy Broggi, an Associate with the firm.*  Wiley Rein LLP represents the United States Chamber of Commerce as amicus in American Beverage Ass’n v. San Francisco.

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The tide may be turning on commercial free speech in the context of forced disclosures and warnings, as parties wait for further clarification from the Supreme Court on the level of protection due private speech.  The Ninth Circuit’s recent en banc decision in American Beverage Association v. City and County of San Francisco, No. 16-16072 (9th Cir. Jan. 31, 2019), is a limited step in the right direction, though as concurring opinions make clear, much more needs to be done to fix the doctrinal confusion about compelled speech and properly limit the power of government. Continue reading “Ninth Circuit Narrowly Vindicates First Amendment in Bellwether Compelled Speech Case”

Ninth Circuit Decision Underscores Need for Clarity on ADA’s Application in Cyberspace

patchworkDebate over whether the Americans with Disabilities Act’s (ADA) applies to websites has been raging for years—mostly in the federal courts. As happens all too often, federal legislators and regulators have remained mostly mute, leaving judges to resolve this thorny question. This default appeal to the judiciary, which has produced divergent decisions, deprives website owners the consistent and transparent fair notice that the free-enterprise system needs (and that businesses deserve under our Constitution) to function.

The Ninth Circuit is the latest court to stitch a new block onto the patchwork quilt of website-related ADA rulings. On January 15, the court held in Robles v. Domino’s Pizza, LLC that the company’s website was a service of a “place of public accommodation” (Domino’s physical stores) and thus must be accessible under the ADA. The court also rejected Domino’s argument that the Justice Department’s failure to offer formal guidance on the websites’ ADA status violated their Fifth Amendment right to due process. The Robles decision was highly anticipated and will have a broad impact, evidenced by the amicus brief filed by a coalition of business associations. Continue reading “Ninth Circuit Decision Underscores Need for Clarity on ADA’s Application in Cyberspace”

Food-Labeling Suit’s Successful Class Certification is Cause for Concern in California

Featured Expert Contributor—Civil Justice/Class Actions

Frank Cruz-Alvarez, Shook, Hardy & Bacon L.L.P., with Rachel Forman, Shook, Hardy & Bacon L.L.P.

California is broadening the legal landscape of food-labeling class actions to the dismay of the food and beverage industry.  The Southern District of California in Hilsley v. Ocean Spray Cranberries, Inc. et al. has thrown the doors open for class certification in food-labeling cases.  The court issued an opinion partially certifying a class of consumers consisting of California citizens who purchased one of various Ocean Spray Cranberries, Inc. (“Ocean Spray”) products, such as Ocean Spray Cran Apple or Cran Raspberry, that contain labels which state, “‘No . . . artificial flavors’ when in fact the products contain artificial flavoring chemicals that simulate the advertised fruit flavors.”  Id. at “2. Continue reading “Food-Labeling Suit’s Successful Class Certification is Cause for Concern in California”

With Emulex Corp., Supreme Court Could Raise Bar for “Merger Tax” Securities Suits

bainbridgeFeatured Expert Contributor, Corporate Governance/Securities Law

Stephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law.

In the wake of the Delaware Chancery Court’s pathbreaking decision in the Trulia case,1 which sharply increased the scrutiny given settlements of cases challenging mergers and other takeovers, there has been a dramatic shift of M&A litigation to federal courts.2 How receptive federal courts will be to this flood of new claims will be determined in part by Emulex Corporation, et al., v. Varjabedian, which is currently pending before the U.S. Supreme Court. Emulex turns on whether scienter is an element of the private-party cause of action under § 14(e) of the Securities Exchange Act of 1934. Section 14(e) prohibits fraud in connection with tender offers and thus will be a key provision in assessing the survivability of these new M&A lawsuits.3 Continue reading “With Emulex Corp., Supreme Court Could Raise Bar for “Merger Tax” Securities Suits”