Expressions Hair Design Speech Case Back on Track after Detour to NY State Court

creditcardFor more than 40 years, merchants have sought the right to impose surcharges on customers who use credit cards when making purchases. They prefer customers to pay with cash because when a customer pays with a credit card, the merchant must pay a transaction fee to the credit-card issuer. To encourage cash transactions, many merchants would like to express their pricing in a way that conveys to customers that credit purchases lead to higher prices, but a number of States closely regulate how merchants may express that viewpoint.

A First Amendment challenge to such regulations reached the U.S. Supreme Court two terms ago. The Court granted merchants a preliminary victory in Expressions Hair Design v. Schneiderman, ruling that a New York pricing statute did, in fact, regulate speech and overturning a U.S. Court of Appeals for the Second Circuit decision that reached the opposite conclusion. Continue reading Expressions Hair Design Speech Case Back on Track after Detour to NY State Court”

Federal District Court Excludes Dubious “Scientific” Opinions in Mirena MDL

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

 

Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Jonathan S. Klein, an Associate with the firm.

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Although courts don’t always apply Daubert with the rigor that is warranted, when they do, it is worth noting.  Such is the case with federal district court Judge Paul Engelmayer’s thorough and scholarly decision excluding the opinions of all the plaintiffs’ general-causation experts in an MDL involving Bayer’s Mirena IUD device, In re Mirena Ius Levonorgestrel-related Products. Liability Litigation (No. II).   Continue reading “Federal District Court Excludes Dubious “Scientific” Opinions in Mirena MDL”

In-N-Out Asks Supreme Court to Look at Labor Regulators’ Mistreatment of Commercial Speech

innout“It’s the only fast food chain I actually like.” That was Anthony Bourdain’s verdict on In-N-Out Burger. It is not an unusual opinion. Thanks to its clean halls, happy employees, and fresh produce, In-N-Out enjoys fanatical brand loyalty. Its new locations attract crowds and helicopters. Its drive-thru lines are measured from space. It is acclaimed far beyond its Southern California homeland.

In-N-Out is not just popular; it’s distinctive. Each location is a kind of motor oasis. The building is decked in neon lights, glossy tiles, and palm-tree listellos. The servers wear white uniforms and soda-jerk hats. The menu is little more than a hamburger, a cheeseburger, fries, and a milkshake. The look is classic. The feel is easy. The faithful are ecstatic. In-N-Out is a Norman Rockwell painting, The Endless Summer, and Saint Becket’s shrine rolled into one. Continue reading “In-N-Out Asks Supreme Court to Look at Labor Regulators’ Mistreatment of Commercial Speech”

Divided Virginia Supreme Court Decision Epitomizes National Split over “Take Home” Asbestos Liability

Featured Expert Contributor, Mass Torts—Asbestos

RobertWrightRobert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

Plaintiffs have pushed for a rule that would hold employers liable for so-called “take home” asbestos exposures, arguing that companies that used asbestos in the workplace owe a duty not only to protect their own employees from direct exposures, but also to protect anyone who later comes into contact with those employees.

This theory of liability has been rejected in almost two-thirds of the jurisdictions to consider the issue.  Fifteen states—including Arizona earlier this year—have decided defendants owe no duty of care to those claiming take-home exposure (Arizona, Georgia, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Texas).  In contrast, until recently, only eight states recognized some form of such a duty (Alabama, California, Delaware, Indiana, Louisiana, New Jersey, Tennessee, Washington).

Earlier this month, the Supreme Court of Virginia was confronted with the question of take-home liability in Quisenberry v. Huntington Ingalls Inc., No. 171494, 2018 WL 4925349 (Va. Oct. 11, 2018).  Continue reading “Divided Virginia Supreme Court Decision Epitomizes National Split over “Take Home” Asbestos Liability”

EPA’s Return to Rigorous Cost-Benefit Analysis Continues with Impending Methane-Rule Revision

EPA-LogoThe Environmental Protection Agency (EPA) is set to propose changes to the regulation of mercury emissions that can recalibrate the balance between the costs of such controls and the benefits they confer. This action would be consistent with other administrative agency moves, which we have discussed recently here, to elevate the level and quality of economic analysis that past and future regulations must undergo.

The proposal EPA recently sent to the White House’s Office of Management and Budget characterizes the Mercury and Air Toxics Standards Rule for Power Plants (“MATS rule”) as a needlessly expensive mandate and recommends that its costs and benefits should be recalculated. The MATS rule was aimed at reducing toxic power-plant emissions, but utilities have spent an estimated $9.6 billion a year to comply with the new standards, while the mercury emissions reductions have led to a comparatively small estimated annual benefit of $4 million to $6 million. When signing the Energy Independence Executive Order, the President singled out MATS, stating, “Perhaps no single regulation threatens our miners, energy workers, and companies more than this crushing attack on American industry.” Continue reading “EPA’s Return to Rigorous Cost-Benefit Analysis Continues with Impending Methane-Rule Revision”

Lessons from FTC’s Loss in, and Subsequent Abandonment of, DirecTV Advertising Case

Featured Expert Contributor, Antitrust & Competition Policy — Federal Trade Commission

06633 - Royall, M. Sean ( Dallas )M. Sean Royall, a Partner in the Dallas, TX office of Gibson, Dunn & Crutcher LLP, with Richard H. Cunningham, a Partner, and Brett S. Rosenthal and Emily Riff, Associates, with Gibson, Dunn & Crutcher LLP.

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The FTC recently suffered a significant setback in a closely watched advertising practices case against DirecTV.  Specifically, on August 16, 2018, Judge Gilliam of the U.S. District Court for the Northern District of California granted judgment in favor of DirecTV on the majority of the claims at the close of the FTC’s case in chief—including all claims relating to DirecTV’s disclosures in its advertising—before DirecTV began to present its own case in defense. And then yesterday, the FTC agreed to dismiss the remainder of its case voluntarily with prejudice, fully ending the enforcement action.

Judge Gilliam’s decision reflects an emphatic rejection of both the disclosure standards sought by the FTC and the agency’s proposed approach to monetary equitable remedies.  The court’s analysis should be of interest to companies that sell services on a subscription basis or that offer a variety of price, service, and promotional options. Continue reading “Lessons from FTC’s Loss in, and Subsequent Abandonment of, DirecTV Advertising Case”

DOJ Expands FCPA-Violation Self-Disclosure Incentive to the Health Care Industry

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with Erin M. Eiselein, a Shareholder in the firm’s Denver, CO office.

It has been a busy few months for the Fraud Section of the Department of Justice (“DOJ”) as the section continues its road show to educate the health care community on its recent Foreign Corrupt Practices Act (“FCPA”) guidance. As has been widely reported, DOJ announced a new policy (which took effect immediately) of applying its FCPA Corporate Enforcement Policy to health care companies. DOJ has focused considerable enforcement resources lately on health care companies’ alleged payment of bribes to foreign officials. Continue reading “DOJ Expands FCPA-Violation Self-Disclosure Incentive to the Health Care Industry”