Soda Warning Case Tests How High Court’s NIFLA Decision Affects Commercial Speech Mandates

FirstAmendmentFor the past several decades, the U.S. Supreme Court and at least some federal appeals courts have been moving in opposite directions with respect to First Amendment protection for commercial speech. The Supreme Court’s trend since the mid-1970s has been to afford ever-increasing protection to truthful speech uttered by commercial speakers. In sharp contrast, some federal appeals courts have become increasingly deferential toward government efforts to control such speech. The Supreme Court’s June 2018 decision in NIFLA v. Becerra resoundingly affirmed the Court’s strict limits on the government’s authority over commercial speech, particularly in the context of compelled speech.

The first major test of whether appeals courts will heed that directive came before an en banc panel of the Ninth Circuit on September 25. The questions posed by the 11 judges on the panel suggest that the Ninth Circuit remains reluctant to embrace NIFLA’s message. Continue reading “Soda Warning Case Tests How High Court’s NIFLA Decision Affects Commercial Speech Mandates”

Big Business Will (Probably) Save Us

corporateHQIn the 1960s and 1970s, as South Korea and Hong Kong liberalized, India persisted in Jawaharlal Nehru’s vision of state planning and protectionism. No one deserves more blame than Nehru’s daughter, Indira Gandhi, the nation’s third prime minister.

One of Gandhi’s many sins was to limit capital investment. Most factories could not contain more than a few hundred-thousand dollars’ worth of equipment. At its height this control affected more than 800 products, including car parts, clothes, shoes, toys, and toothpaste. While China gained an economic foothold exporting cheap consumer goods, India could not even produce pencils efficiently.

By 2005 large firms employed more than half of China’s manufacturing workers, but only about ten percent of India’s. This is one reason why China’s GDP per capita was equal to India’s in the 1970s, but triple India’s by the 2000s.

In the abstract, at least, most Americans like small businesses and dislike big corporations. In Big is Beautiful: Debunking the Myth of Small Business, Robert D. Atkinson and Michael Lind argue for an attitude adjustment. Continue reading “Big Business Will (Probably) Save Us”

At Stake in “Apple v. Pepper”: Why the Supreme Court’s Direct-Purchaser Rule is a “Super-Precedent”

app storeOne of the more interesting cases the Supreme Court will hear in the new term is Apple, Inc. v. Pepper. We’ve blogged previously about the case here. Superficially, the Court will decide whether iPhone users who buy apps from Apple’s App Store may sue Apple for alleged antitrust violations, or whether only app developers may bring such claims. But more fundamentally, resolution of the case hinges on the continued viability of Illinois Brick Co. v. Illinois, which holds that only the direct purchaser of a good or service may sue an allegedly abusive monopolist for damages.

In February, two high-level officials in the Department of Justice’s Antitrust Division floated the possibility of asking the Supreme Court to abandon Illinois Brick’s direct-purchaser rule. But the Solicitor General, in the United States’ amicus brief, insists that the question is not properly joined in the case. If either the Respondents or their amici urge the Court to overturn Illinois Brick, they will face a high hurdle. Continue reading “At Stake in “Apple v. Pepper”: Why the Supreme Court’s Direct-Purchaser Rule is a “Super-Precedent””

WLF Supreme Court Preview Briefing Delves into Cases and Petitions Affecting Free Enterprise

Our October Term 2018 preview aired live at 12:30 on September 18. Thomas Goldstein of Goldstein & Russell, P.C. moderated a panel that featured Professor John Yoo of UC Berkeley School of Law; Shay Dvoretzky of Jones Day; and Beth Brinkmann of Covington & Burling LLP.

Washington Legal Foundation has filed amicus briefs in four cases currently on the Court’s October 2018 docket and in support of five certiorari petitions:

Merits cases

Cert. Petitions

Relevant WLF Publication

Air & Liquid Systems Corp. v. Devries: Asbestos Litigation’s “Bare Metals” Defense Goes Before the U.S. Supreme Court

Courts Reject Buyers’ Remorse and Wasted Time as Redressable Class-Wide Injuries

article IIIWe return once again (click here for past posts) to the seemingly banal legal doctrine of standing to sue—a subject that few, if any, likely contemplated when celebrating Constitution Day this week. This doctrine does, however, arise from the Constitution’s ingenious separation of powers among the three branches of government. Article III limits the judiciary’s role to resolving “cases” and “controversies.” From that the U.S. Supreme Court derived the standing doctrine as a way to test whether plaintiffs’ claims are fit for judicial resolution. A key part of the test is whether a plaintiff can factually establish that she suffered a concrete “injury in fact” that can be traced to the defendant’s conduct and can be redressed by a judicial remedy.

Legal claims based on conjectural or hypothetical harm, therefore, should not be inundating federal courts’ dockets. Unfortunately, too many no-injury class actions are passing the standing test, thanks in part to broadly worded state consumer-protection laws (and judges’ reluctance to reject jurisdiction). Just last week, for instance, a federal court ruled that state fraud laws are so broad that consumers who purchased vehicles with faulty ignition switches can recover damages even if the defect never manifested itself. And earlier this year, the Supreme Court refused to review an appellate court decision that allows eye-drop users to sue based on the speculative theory that eye-drop producers would charge the same price for a vial with a smaller dispensing hole.

Given the current trend on standing, it is critical to highlight positive outcomes in this area. We discuss two encouraging decisions here, one from the court that allowed the aforementioned eye-drop suit to proceed, the U.S. Court of Appeals for the Third Circuit, and the second from a federal court in California, a state with perhaps the nation’s most permissive consumer-protection laws. Continue reading “Courts Reject Buyers’ Remorse and Wasted Time as Redressable Class-Wide Injuries”

Fifth Circuit Signals Sea Change in CFPB Civil Investigative Demand Analysis

Featured Expert Contributor, White Collar Crime & Corporate Compliance

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By Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC with Sarah Auchterlonie, a Shareholder in the Denver, CO office.

On September 6, 2018 the U.S. Court of Appeals for the Fifth Circuit raised the standard under the Consumer Financial Protection Act (CFPA) (12 U.S.C. § 5562(c)(2)) for the specificity in a Bureau Civil Investigative Demand’s notification of purpose. In Consumer Financial Protection Bureau v. The Source for Public Data, Case No. 17-10732 (5th Cir. Sept. 6, 2018), the CFPB sent a CID to Source for Public Data, Inc., a company that provides records from local, state, and federal agencies about individuals through an internet-based search engine. The CID stated that its purpose was to investigate “unlawful acts and practices in connection with the provision or use of public records information.” It referenced the Fair Credit Reporting Act (FCRA). Continue reading “Fifth Circuit Signals Sea Change in CFPB Civil Investigative Demand Analysis”

California Supreme Court Says Use of Industry Custom and Practice Evidence Is a “Two-Way Street” in Products Liability Actions

RobertWrightJAT updated 150106_024_1a_webFeatured Expert Contributor, Mass Torts—Asbestos

By Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA, with Partner John A. Taylor, Jr. Mr. Taylor was counsel of record on an amicus brief filed by the Alliance of Automobile Manufacturers in Kim.

In 2016, the California Supreme Court granted review in Kim v. Toyota Motor Corporation to determine whether, in a strict products liability action, evidence that a product’s design conforms with industry custom and practice is relevant and admissible.  Several appellate decisions in California had previously held that such evidence is categorically inadmissible, but the lower appellate court in Kim had taken a more nuanced approach, saying, in effect, “it all depends.”

Manufacturers awaited Kim with some anxiety, given that California is now the world’s fifth largest economy, other states look to California law for guidance on products liability law issues, and recent personnel changes on the court made the outcome in the case somewhat unpredictable.

The manufacturing industry therefore breathed a collective sigh of relief when, in August 2018, the California Supreme Court finally issued its decision in Kim, after considering briefing from the parties and nearly a half dozen amicus briefs from industry groups, business organizations, and the defense bar.  Continue reading “California Supreme Court Says Use of Industry Custom and Practice Evidence Is a “Two-Way Street” in Products Liability Actions”