ObamaCare Opponents, Proponents Race to the Supreme Court

U.S. Supreme Court door

This past week brought us the best night in baseball history.  But if, like me, you’re a sucker for the latest developments in the constitutional challenge mounted against the federal health reform law, this past week brought plenty of excitement on that front, as well. 

On Monday night, we learned that the federal government decided not to seek rehearing en banc of the U.S. Court of Appeals for the Eleventh Circuit’s opinion declaring the individual mandate unconstitutional.  Many experts had assumed that the Department of Justice (DOJ) would seek to delay Supreme Court review for as long as possible by asking for review by the entire Eleventh Circuit panel.   But in the end, that didn’t happen.  Everyone has an opinion on how and why the administration made that decision.  For what it’s worth, I tend to agree with Tom Goldstein that the institutional demand for certainty outweighed other considerations in the end.  Practically speaking, the government and its agencies need to know as soon as possible whether the law will survive a constitutional challenge in order to begin the lengthy and burdensome process of implementing it. Continue reading “ObamaCare Opponents, Proponents Race to the Supreme Court”

Finger on the Pulse: From Our Blogroll and Beyond

  • At urging of Pennsylvania Attorney General, Third Circuit seeks PA Supreme Court opinion on minority shareholders’ right to sue over merger (Legal Intelligencer)
  • Policy ideas have consequences: Soda tax proposed in France, Coca-Cola puts $24 million expansion of French plant on hold (Vancouver Sun)
  • Can a suit be certified as a class action solely for purpose of determining punitive damages after Wal-Mart v. Dukes? 9th Circuit asks a district court to consider (California Punitive Damages)
  • Back to product liability basics at the Seventh Circuit in “consumer expectations” decision (Consumer Class Actions and Mass Torts)
  • Liability without culpability: A deeply troubling trend (D&O Diary)
  • When a single-used medical device is reprocessed and does harm, is the device’s manufacturer liable for injuries? Minnesota federal court issues ruling (Drug & Device Law)
  • What we can learn about the state of federal regulation from government’s Unified Regulatory Agenda (RegBlog)
  • Is a new ACLU suit forthcoming, now that a U.S. drone has reportedly eliminated radical al-Qaeda leader Al-Aulaqi? (Volokh Conspiracy)
  • More false patent marking suits bite the dust under America Invents Act reform provision (WSJ Law Blog; for more see this Legal Pulse post)

Federal judge upholds some of Alabama immigration law

In a 115-page memorandum opinion, Judge Sharon Lovelace Blackburn upheld certain portions of the Alabama immigration law passed in June and challenged by the Department of Justice. She enjoined other portions out of concern for preemption by federal law. A quick run-down of the provisions upheld and enjoine


Signs Both Encouraging and Discouraging in Agencies’ Letter on “Voluntary” Food & Drink Ad Guidelines

Much to the chagrin of nanny-state activists, federal regulators are starting to acknowledge how extreme and unworkable their “Preliminary Proposed
Nutrition Principles to Guide Industry Self-Regulatory Efforts” on food and beverage advertising directed at “children.” 

As reported today in The Hill’s Healthwatch blog, the secretaries of HHS and Agriculture, as well as the Chairman of the FTC, jointly wrote Rep. Fred Upton in response to a letter he and 21 other Members of Congress sent regarding the preliminary principles. The agency heads notably stated that:

  • The Interagency Working Group (IWG) “anticipates making significant changes to both the marketing and nutrition principles as it develops final recommendations”
  • The IWG is aware of self-regulatory efforts set to go into effect by 2013 (explained here in a Legal Pulse Q&A with the Better Business Bureau’s Elaine Kolish) and it “intend[s] to take this significant development into account, as well as other stakeholder comments, when developing our final recommendations.”

These statements were of course carefully considered and heavily vetted before the Secretaries Vilsack and Sebelius, and Chairman Leibowitz sent their letter to Rep. Upton, so their significance cannot understated.

For the same reason, we are troubled by what went unsaid in the letter.  Continue reading “Signs Both Encouraging and Discouraging in Agencies’ Letter on “Voluntary” Food & Drink Ad Guidelines”

Foreign Sovereign Compulsion, Act of State and Comity: Can They Save You?

Guest Commentary

Charles C. Moore, White & Case LLP

Companies doing business in jurisdictions with managed economies may encounter greater difficulty raising laws and regulations of those jurisdictions as a defense in U.S. antitrust (and other) actions.  On September 6, 2011, a New York federal court denied summary judgment to certain Chinese manufacturers of vitamin C in In re Vitamin C Antitrust Litigation, 06-MD-1738 (BMC) (“Vitamin C”), rejecting the manufacturers’ claims that the Chinese government compelled them to fix the prices of vitamin C or that Act of State or comity principles should apply.  While Judge Cogan’s rather detailed opinion (72 pages) may suggest that the ruling is limited to the specific Chinese regulatory scheme at issue, businesses operating in similar jurisdictions should take note of a few general principles suggested by the ruling: Continue reading “Foreign Sovereign Compulsion, Act of State and Comity: Can They Save You?”

“False Patent Marking” Suit Plaintiffs Finally Meet Their Match: Federal Legal Reform

Please join The Legal Pulse and hundreds of American companies in a moment of jubilant silence to recognize the demise of bounty hunter-initiated “false patent marking” litigation.

After devoting numerous posts to this judicially created phenomenon as well as several educational papers, WLF couldn’t sit idly by now that Congress has put enforcement of our patent laws back into the proper hands, i.e. the U.S. government and those who have suffered an actual injury.

A section of the Leahy-Smith America Invents Act (analyzed more broadly by Eli Lilly General Counsel Robert Armitage in a new WLF Legal Backgrounder) amends § 292(b) of the federal patent act. Private qui tam “relators” will no longer be able to enforce that part of the law, which prohibits manufacturers from “falsely marking” their products as patented. Prior to 2009, few enterprising citizens patent lawyers went searching for products with expired patent numbers on them, as the damage limit (half of which went to the federal treasury) was $500. But that year, a U.S. Court of Appeals for the Federal Circuit ruling, Forest Group, held that the fine was $500 for each instance of false marking, and the floodgates for bounty hunter suits flew open. Another Federal Circuit ruling, Brooks Brothers, confirmed that the patent law itself created an injury so any citizen had standing to sue under  § 292(b). According to Foley & Lardner attorney Justin Gray, over 1,000 false marking suits were filed since January 2010, and 450 or so were still pending at the time Leahy-Smith passed. See Gray’s handy chart of those suits here. Continue reading ““False Patent Marking” Suit Plaintiffs Finally Meet Their Match: Federal Legal Reform”

Finger on the Pulse: From Our Blogroll and Beyond

  • Copious commentary on Senate Judiciary Committee subcommittee hearing on antitrust scrutiny of Google (Tech Dirt; Hillicon Valley; American Consumer Institute)
  • Patent reform law all-but puts patent marking lawsuit industry out of business (WSJ Law Blog
  • A more level regulatory playing field?: Group seeks greater oversight of “homeopathic” drugs (FDA Law Blog)
  • Beverage industry donations to hospital cause City of Brotherly Love to reject hospital’s offer to fund anti-obesity program (Philadelphia Inquirer)
  • More un-Brotherly Love: Anti-fracking protesters in Philadelphia oppose job creation in natural gas extraction industry (CNN)
  • SEC Chairman tell House committee it really isn’t regulating natural gas “fracking” (Reuters). We beg to differ – SEC: Securities and Environment Commission?
  • With patent reform out of the way, Congress pivots to online copyright infringement with “Protect IP Act” (Copyhype)
  • EPA at last approves air permit to allow exploration for offshore Alaskan oil; rush to the courthouse begins for environmental activists (Fuel Fix)
  • Notorious copyright troll (subject of past Legal Pulse posts like this one) has assets targeted after it refuses to pay defendant’s attorneys’ fees (Threat Level; TechDirt)
  • “Non-binding” say-on-pay vote that went way of shareholders’ view on executive compensation leads to shareholder suit (D&O Diary)
  • Why the disparity between DOJ charging individuals vs. corporations under the Foreign Corrupt Practices Act? (FCPA Professor)