As the Internet increasingly has become the dominant means of conveying both facts and opinions, the number of defamation and other speech-related lawsuits filed in state and federal courts has risen markedly. Responding to what some lawmakers characterize as “strategic lawsuits against public participation” (SLAPP)—suits aimed at suppressing legitimate speech or public debate through imposing the financial burdens of litigation—many states have enacted so-called anti-SLAPP statutes. One characteristic feature of all anti-SLAPP statutes is that they provide an expedited mechanism whereby a defendant can have a qualifying SLAPP suit dismissed quickly. Continue reading
Featured Expert Column –Judicial Gatekeeping of Expert Evidence
Even though Daubert v. Merrell Dow Pharmaceuticals, Inc. has been the law of the land for over two decades, questions about its scope and the responsibility of the district courts to serve as gatekeepers continue to abound. In Nease v. Ford Motor Co., a recent US Court of Appeals for the Fourth Circuit case, the district court allowed an engineer to testify as an expert even though he had never tested his hypothesis, had no examples of his hypothesis occurring in the real world (including in the instant case), and had relied on an outdated safety manual in forming his conclusions. This abdication of the district court’s gatekeeping responsibilities resulted in the admission of junk science masquerading as expert testimony and a $3 million jury verdict in the plaintiffs’ favor. The Fourth Circuit unanimously reversed in an opinion that strongly reaffirms Daubert’s breadth and importance. Continue reading
The Federal Trade Commission (FTC) has commenced a new data security enforcement action, alleging that security weaknesses in D-Link’s routers and webcams violated Section 5 of the FTC Act. The complaint highlights many of the FTC’s data security best practices, as examined in Washington Legal Foundation’s recent Working Paper, but also highlights new data security issues that the FTC has not previously referenced in its data security enforcement actions. Unlike most FTC data security enforcement targets, D-Link has chosen to defend against the complaint instead of entering into a settlement agreement—and the FTC has decided to file its complaint against D-Link in federal court. This action sets the stage for the next in a recent line of cases challenging the FTC’s data security enforcement authority. Continue reading
*Note: This is the second in a planned series of posts compiling Washington Legal Foundation papers, briefs, regulatory comments, and blog commentaries relevant to critical legal and constitutional issues facing new senior leaders at specific federal regulatory agencies. To see the first post in the series, discussing DOL, OSHA, EEOC, and NLRB, click here.
Rapid technological change has altered the way people communicate and consume information. For the past eight years, the Federal Communications Commission (FCC) has been scrambling to adapt to this new reality while expanding its regulatory turf. In the process, FCC has cut corners and imposed new regulations that chill innovation and investment.
Through its public-interest litigation, publishing, and other advocacy, WLF influenced debates over FCC’s policies and actions with timely papers and blog commentaries, and weighed in directly through regulatory comments and amicus briefs. Those activities have resulted in an impressive body of reference materials that are instructive for new leadership in the agency. We provide a summary of and links to those documents below to simplify access to relevant work product from WLF in each of those areas. Continue reading
A February 8 post, Kudos to Colorado AG for Rebuking Boulder County on Its Fracking Moratorium, discussed a letter Colorado Attorney General Cynthia H. Coffman sent to the Boulder County Board of County Commissioners warning that the state would file suit if the county did not end its moratorium on new oil and gas development permits by February 10.
After giving the Board four extra days to comply, Attorney General Coffman filed suit against Boulder on February 14. The suit alleges that the moratorium conflicts with the Colorado Oil and Gas Conservation Act. The state supreme court held in a 2016 decision that the Act preempted anti-fracking rules adopted by two other Colorado localities.
The complaint can be viewed here. Upon filing suit, Attorney General Coffman stated:
The Boulder County Commissioners responded [to the Attorney General’s letter] that they needed yet more time to draft regulations and prepare to accept new applications for oil or gas development. Because five years is more than reasonable time to complete such a project, and because Boulder County continues to operate in clear violation of Colorado law, the Attorney General today is filing suit in Boulder County District Court to compel compliance. It is not the job of industry to enforce Colorado law; that is the role of the Attorney General on behalf of the People of Colorado. Regrettably, Boulder County’s open defiance of State law has made legal action the final recourse available to the State.
Susan E. Dudley is Director of the George Washington University Regulatory Studies Center, which she founded in 2009, and a distinguished professor of practice in the Trachtenberg School of Public Policy and Public Administration. From 2007 to 2009, she served as the Administrator of the Office of Information and Regulatory Affairs (OIRA) in the U.S. Office of Management and Budget.
WLF Legal Pulse: As promised, Congress and the Administration have quickly gotten to work reconsidering and removing a host of federal regulations while also setting the stage for a much different approach to regulation. Let’s first talk about what Congress is doing.
Professor Dudley: Under the Congressional Review Act of 1996 (CRA), Congress has 60 legislative days after a regulation is published to vote to disapprove it. The procedures for disapproval are streamlined (including requiring a simple majority in the Senate) and if a rule is disapproved, the agency cannot issue something substantially similar. Continue reading
When attempting to remove civil lawsuits from state to federal court, business defendants often must contend with not one, but two opponents. One opponent, of course, is the plaintiff, who prefers the home cooking of a local judge and jury. The second opponent is the federal district court judge, who may be loath to inflate the size of his docket. The US Court of Appeals for the Fifth Circuit late last month reversed one district court judge’s crabbed interpretation of a removal statute which consigned an asbestos-liability defendant to the notoriously pro-plaintiff Louisiana state courts. Continue reading