Class Actions Clothed in Righteousness: Appeals Court Rejects Bargain-Hunters’ Suits for Lack of Injury

nordstrom rackBy Abbey Coufal, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Bargain shopping is not for the weary, but there is something thrilling about combing through items on tightly-packed circular racks, with the hope of hunting down the desired piece of clothing at a good price. Landing the perfect deal usually brings a feeling of satisfaction, and does not give rise to conflict with the retailer. But in America, even a bargain-finder who bought an unblemished sweater can turn around and sue the business on behalf of herself and countless other shoppers, claiming they were all fooled into making their purchases. Continue reading

FTC Takes a Commendable First Step Toward Reducing the Burden of Consumer-Protection Investigations

Featured Expert Column:
Antitrust & Competition Policy — Federal Trade Commission

06633 - Royall, M. Sean ( Dallas )By M. Sean Royall, a Partner with Gibson, Dunn & Crutcher LLP, with Richard H. Cunningham, Of Counsel in the firm’s Denver, CO office, and Ashley M. Rogers, an Associate Attorney in the firm’s Dallas, TX office.

On July 17, 2017, Federal Trade Commission (FTC) Acting Chairman Maureen K. Ohlhausen announced internal process reforms that aim to “streamline information requests and improve transparency” in the agency’s consumer-protection investigations.  According to the announcement, going forward the Bureau of Consumer Protection will:

  • provide “plain language” descriptions of the civil investigative demand (CID) process the agency uses as its primary tool for gathering information during investigations on a compulsory basis;
  • provide “more detailed” descriptions of the scope and purpose of investigations;
  • limit the relevant time periods covered by CID informational requests;
  • “significantly” reduce the length and complexity of CID instructions for providing electronically stored data; and
  • increase the time available to respondents to respond to agency CIDs.

Continue reading

Pokèmon, Go Get a Permit: Free-Speech Suit Ropes in Reactionary County Ordinance

pokemongo2It’s October 2016, and Milwaukee County, Wisconsin residents are massing on sidewalks, around town landmarks, and in public parks, eyes glued to their smartphones as they chase virtual Pokèmon Go characters.

Meanwhile, in the halls of county government, elected officials mull over the implications of this craze.

Some delight at the game’s ability to bring people together and inspire normally sedentary younger residents to get outside. Others, however, wring their hands over complaints of traffic disruptions and unruly teenagers and scheme over how to quell game-creature hunting, or at least how to make money off of it for the county.

One supervisor, deciding that something needs to be done, devises an ordinance. Rather than target the bad behavior of individuals playing the games, the measure imposes a permitting process and fees on augmented-reality-app developers. After several months of debate, the Board of Supervisors passes Resolution 16-637 by a 13-4 vote on February 2, 2017. Continue reading

Eastern District of Texas Refuses to Accept Supreme Court’s Patent-Venue Ruling

hydraBy Ryley Bennett, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

The US District Court for the Eastern District of Texas (EDTX) is known as one of the federal judiciary’s most patent-plaintiff-friendly districts. With TC Heartland LLC v. Kraft Food Groups Brand LLC, 137 S. Ct. 1514 (2017), the US Supreme Court recently cut off one avenue for filing patent-infringement claims there. It ruled in that patent-infringement lawsuits may be brought only in the infringer’s home state or else in a federal district where it maintains a regular place of business. But like the resilient, mythical Hydra, when one head is cut off, more grow back. In a recent decision, Eastern District of Texas Judge Rodney Gilstrap developed a broadly-sweeping four-factor “totality” test seemingly aimed at keeping patent-infringement suits in his jurisdiction. Continue reading

US-Based Tech Companies Subject to Worldwide Jurisdiction as Judicial Comity Takes a Back Seat

Guest Commentary

moinBy Moin A. Yahya, Vice Dean and Professor of Law at the University of Alberta’s Faculty of Law.

The Supreme Court of Canada’s (SCC) recent decision in Google Inc. v. Equustek Solutions Inc. is the latest in non-American courts asserting their jurisdiction over American companies’ global operations using the pretext of the Internet.  The case arose as a dispute between two companies—one a manufacturer of networking devices and the other its distributor.  The distributor was accused of passing off its own competing products as the manufacturer’s, which led the manufacturer to sue the distributor.  It obtained an order requiring the distributor to cease distributing the manufacturer’s products.  The distributor did not comply, left Canada, and did not appear in subsequent proceedings.  The distributor, however, continued to advertise itself as a seller of the manufacturer’s products on several non-Canadian websites.  Continue reading

WLF Caps off Legal-Studies Series on Commercial Speech with Prof. Martin Redish Interview

CW Summer 2017On July 28, 2017, Washington Legal Foundation published an interview in which Northwestern University Pritzker School of Law Professor Martin H. Redish answered questions on the evolution of commercial-speech protection. This Conversations Withpaper provides a fitting culmination to the series of WLF publications on commercial speech produced in the last six months.

Over the past 46 years, beginning with a 1971 law review article drafted as a Harvard Law School student, Professor Redish’s scholarship has deeply influenced the US Supreme Court’s development of the so-called commercial-speech doctrine. In the Conversations With paper, he discusses the impetus for that article, as well as the High Court’s growing respect for commercial speech.

The WLF publications were meant to provide policy makers at the state and federal levels with a basic understanding of commercial speech and the First Amendment scrutiny courts apply when reviewing restrictions on such speech. The publications, with links to each, are listed below:

 

DC Circuit’s “Aneurysm of Activism”: EPA Temporary Stay of Air Rule Is Final Agency Action

Featured Expert Column – Environmental Law and Policy

sboxermanBy Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

On July 3, 2017, in a 2-1 per curium decision, the US Court of Appeals for the DC Circuit vacated a three-month stay that the United States Environmental Protection Agency’s (“EPA”) had issued while the agency reconsiders its 2016 New Source Performance Standard (NSPS) for the oil and gas sector.  See Clean Air Council v. Pruitt, No. 17-1145, (D.C. Cir. July 3, 2017).  In a well-reasoned dissent, Judge Brown argued neither the agency’s decision to grant a temporary stay nor reconsider aspects of its own regulation were final agency action.  Relying on the dissent, intervening states and industry stakeholders have sought rehearing en banc and that request is pending.  However, regardless of the outcome of that request, the panel ruling indicates that EPA may face an activist DC Circuit that will scrutinize the agency’s process as it reconsiders regulations promulgated during the previous Administration.     Continue reading