A Rough Year in Court for EPA Ends on an Undeserved Upbeat Note


Cross-posted at WLF’s Forbes.com contributor page

The Environmental Protection Agency (EPA) has had a pretty rough 2012 in federal court. A number of lower federal courts (we detail here, here, and here) reined in the agency’s efforts to expand its authority, and in March, the Supreme Court in Sackett v. EPA unanimously held that the Clean Water Act doesn’t preclude judicial review of EPA compliance orders.

Contrary to this trend, the U.S. Court of Appeals for the D.C. Circuit gave EPA some holiday cheer on December 20, denying a rehearing en banc request in Coalition for Responsible Regulation v. EPA. In June, a three-judge panel held that EPA could regulate motor vehicle and stationary sources of six “greenhouse gases” (GHGs) under the Clean Air Act (CAA). Last Thursday’s opinions reflected a 5-2 vote against en banc rehearing, with a brief concurring statement by the three judges who issued the June ruling and two lengthy dissents from Judges Brown and Kavanaugh.

The dissents made two points: 1) The Supreme Court’s 2007, 5-4 Massachusetts v. EPA ruling, on which the June opinion relies, was wrongly decided; and 2) Mass. v. EPA doesn’t apply to regulation of GHGs from stationary sources because the definition of “air pollution” the Supreme Court applied is intertwined with the context of the case — motor vehicles or “tailpipe” emission. Continue reading “A Rough Year in Court for EPA Ends on an Undeserved Upbeat Note”

Further Down the Slippery Slope: The EU’s Tobacco Package Property Seizure

EUCross-posted at WLF’s contributor page on Forbes.com

On Wednesday, the European Union’s Health Commission announced revisions to its Tobacco Products Directive. If approved by EU member states and the European Parliament, the Directive would, among other things, seize 75% of the tobacco package for graphic warnings and permit states to seize the entire label through plain packaging.

The Health Commission and public health activists are no doubt busy congratulating themselves and each other. But such policies offer a hollow promise of tobacco use reduction, tread on international laws and treaties, and set the EU on a slippery slope towards further restrictions on consumer information.

Such massive graphic warnings and plain packaging are governments’ “ideas of the moment” for reducing tobacco consumption. A U.S. Food and Drug Administration proposal forces tobacco makers to communicate the government’s disdain for smoking with gory images on 50% of the package. As we’ve noted here previously, two federal circuit courts have issued differing opinions on the constitutionality of this proposal, and the issue is likely headed to the U.S. Supreme Court. Also, at the beginning of this month, Australia’s plain packaging requirement went into effect after the country’s highest court upheld its legality. A just-published WLF Legal Backgrounder details the ruling and views it as merely an opening salvo in a larger legal battle. Continue reading “Further Down the Slippery Slope: The EU’s Tobacco Package Property Seizure”

‘Tis the Season for More Smartphone “Patent War” Court Rulings

phoneboothCross-posted at WLF’s Forbes.com contributor page

As we remarked in a late December 2011 Legal Pulse post, federal judges have no qualms with keeping lawyers, reporters, legal commentators, and other interested parties busy during the holiday season by releasing decisions in high-profile cases.

That has certainly been the case this week, which featured decisions from two different forums on high-tech patents. These are the latest developments in the so-called smartphone patent war, a wide-ranging battle has kept many judges busy and lawyers fully employed this year.

The first development arises from the Apple v. Samsung litigation in Judge Lucy Koh’s chambers in the Northern District of California. We’ve poked fun at that particular jurisdiction on this blog, dubbing it “The Food Court” (see, e.g. here) for being a favorite forum for food labeling class action suits. Perhaps “The Phone Booth” might be a secondary moniker.

Judge Koh’s December 17 decision could have major implications for patent litigation involving complex products, like smartphones, which feature hundreds of features. In that case, a jury in August found that features in Samsung phones infringed upon Apple patents and awarded Apple damages of over $1 billion. However, as commentators in a Recorder article noted, what Apple really wants (and what most plaintiffs in similar cases ultimately want) is a permanent injunction against Samsung, which would set Samsung back significantly in the smartphone marketplace. Continue reading “‘Tis the Season for More Smartphone “Patent War” Court Rulings”

Welcome to “Sorrellonia”!: WLF Seminar Assesses Off-Label Drug Speech Ruling

PodiumPic1Off-Label Speech After U.S. v. Caronia: Implications for Drug & Device Regulation and the First Amendment, a Washington Legal Foundation Web Seminar program, is now available for on-demand viewing.

Our program featured analysis and commentary from Coleen Klasmeier of the Sidley Austin law firm and WLF’s Chief Counsel, Richard Samp. Coleen and Rich make reference to a Powerpoint slide deck, which due to a technical problem wasn’t available to viewers during the program.  The slide deck can be downloaded here.

For her presentation, Coleen coined the term “Sorrellonia” because the U.S. Court of Appeals for the Second Circuit two-judge majority in Caronia became the first court to fully apply the holding and rationale of the U.S. Supreme Court’s 2011 Sorrell v. IMS Health opinion.

Coleen’s and Rich’s presentations drew upon their combined years of experience in dealing with FDA’s application of its off-label speech restrictions and the Justice Department’s prosecution of cases where criminal violations of those rules allegedly occurred.

While they both saw great promise in the opinion for greater freedom in the exchange of critical medical information, they also offered firm notes of caution that the ruling not be interpreted as a green light for businesses’ promotion of off-label uses. Great peril still exists in this area they warned, a fact that is all the more apparent today with the announcement of another nearly $1 billion Justice Department settlement with a pharmaceutical company.

Activities of “Patent Trolls” a Focus of Federal Regulators & Courts this Month

thumbnailTrollLitigating, licensing, and other activities involving “patent trolls” have been a focus of numerous past commentaries here at The Legal Pulse. Two developments in the realm of trolls (often more politely called “Patent Assertion Entities,” “Non-Practicing Entities,” or “Patent Monetization Entities”) caught our eye last week, both of which will have an impact on patent and antitrust matters into 2013.

FTC Workshop. On Monday, December 10, the Federal Trade Commission (FTC) held a “Patent Assertion Entity Activities Workshop.” The purpose of the workshop according to the Commission was “to explore the impact of patent assertion entity (PAE) activities on innovation and competition and the implications for antitrust enforcement and policy.” Ars Technica has an excellent report on it here. PAEs/trolls rarely venture into the public eye or speak to the press, so the presence at the workshop of the leadership of Intellectual Ventures, Mosaid, and Round Rock Research in one place was quite remarkable.

It’s certainly far from clear whether the Commission has an interest in enforcement activity with regards to patent trolls, which laws or legal theories it could utilize, or which factual situations might give rise to federal action. One complicating factor, which became clear at the workshop, is that some tech companies which might be targets of troll suits, such as Nokia, have found it beneficial to do business with their would-be courtroom combatants.

Jury Verdict in iPhone Patent Suit. Meanwhile, on Thursday, December 13, a federal jury in Delaware found that several features in Apple’s iPhone, including how it accepts and rejects calls, infringed patents owned by patent “holding company” MobileMedia Ideas LLC. Continue reading “Activities of “Patent Trolls” a Focus of Federal Regulators & Courts this Month”

Finger on the Pulse: From Our Blogroll and Beyond

  • Supreme Court denial of cert in “reverse payment” patent settlement case injects twist into pending “no authorized generics” lawsuit in New Jersey (On the Case)
  • Federal government False Claims Act enforcement hauls in nearly $5 billion in 2012 (Corruption, Crime & Compliance)
  • Great roundup on Caronia off-label speech decision by Jim Beck (Drug & Device Law)
  • SEC and DOJ statements about only pursuing “important” Foreign Corrupt Practices Act cases aren’t in line with their past actions (FCPA Professor)
  • U.S. Court of Appeals for the Federal Circuit rejects constitutional challenge to law that put bounty-hunter “patent marking” lawsuits out of business (Patently-O)
  • The latest developments in the six-year-and-still-going Florida tobacco litigation known as “Engle” (Point of Law)

Supreme Court Observations: Takings Ruling a Lump of Coal, Not a Gift, for Landowners

supreme court

Cross-posted by Forbes.com at WLF’s contributor page

Last week, the U.S. Supreme Court ruled unanimously in favor of the property owner in Arkansas Game and Fish Comm’n v. United States, a case that raised issues under the Fifth Amendment’s Takings Clause.  The Court reinstated the owner’s claims, which had been dismissed by the appeals court.  It is difficult to view the Court’s opinion as a victory for property rights, however; it contains disturbing language that does not bode well for future claimants.

The Takings Clause requires governments to provide “just compensation” whenever they “take” private property for a public purpose.  In determining whether government intrusion on property rights constitutes a “taking” of the property, courts generally employ a “balancing” test that considers a wide variety of factors—including the severity of the intrusion, whether the intrusion was intentional, and the owner’s “reasonable investment-backed expectations” regarding the land’s use.  The Supreme Court has also established several per se rules under which certain government actions will always be deemed to constitute compensable takings. Continue reading “Supreme Court Observations: Takings Ruling a Lump of Coal, Not a Gift, for Landowners”