U.S. Government Should Champion Foreign-Commerce Authority in Washington Export Terminal Legal Dispute

Port of Longview, WA

Lighthouse Resources, Inc. v. Inslee, a federal lawsuit of great national consequence pending in the U.S. District Court for the Western District of Washington (here and here are our past posts on it), has reached a critical point after a year of pre-trial developments. In its January 3, 2018 complaint, Lighthouse Resources (LHR) and BNSF Railway (which intervened as a plaintiff) allege that several Washington State officials, including Governor Jay Inslee, violated the U.S. Constitution and federal laws by blocking approval of a water-port terminal in Longview, Washington. Earlier this month, the plaintiffs moved for partial summary judgment on their claim that the officials intruded on the U.S. government’s exclusive authority over foreign commerce.

Given the lawsuit’s enormous implications for the American economy and federal foreign-affairs power, the U.S. government should file a “statement of interest” with the court urging it to enjoin Washington’s actions. Those actions—motivated, LHR and BNSF assert, by state officials’ desire to block foreign sales of a single disfavored commodity, coal—contravene a federal directive encouraging U.S. exports of energy resources to U.S. allies in Asia. Continue reading “U.S. Government Should Champion Foreign-Commerce Authority in Washington Export Terminal Legal Dispute”

Children’s Crusade for Judicially Managed Climate Regulation Stalls in Federal Court

EDPAOne act in the nationwide climate-litigation sideshow recently got the proverbial hook from a Pennsylvania-based federal judge. From chambers that are fittingly just around the corner from Independence Hall in Philadelphia, Judge Paul S. Diamond refused to “make the Executive a subsidiary of the Judiciary,” which is exactly what the plaintiffs in Clean Air Council, et al. v. United States sought.

Over the past ten years, plaintiffs’ lawyers, environmental activists, and government officials have filed many forests-worth of legal complaints featuring page after page of alarming rhetoric alleging acts and omissions that cause climate change. The suits target both the federal government and private businesses. Plaintiffs have included a coastal Alaskan village, the state of Rhode Island, New York City, and the Boulder County Board of Commissioners. Continue reading “Children’s Crusade for Judicially Managed Climate Regulation Stalls in Federal Court”

Love Regulation or Hate It, the National Debt Is Not Your Friend

barbariansBy the end of the reign of Trajan, in what would later be called AD 117, the impending decline of the Roman Empire could be seen by anyone who looked closely at the coins. In the days of Nero, a half-century before, more than nine parts in ten of a denarius was silver. When Trajan died the ratio was approaching eight in ten, and by the time Septimus Severus gained power in the late second century, it was scarcely more than five in ten.

The Roman state became ever more elaborate, and it incurred ever-mounting administrative, redistributive, and military expenses. Spending less was hard, as was collecting more, so the government on the whole did neither; it just debased the currency. “The inflation that would inevitably follow would tax the future to pay for the present,” writes Joseph Tainter in The Collapse of Complex Societies; “but the future could not protest.”

The United States is $22 trillion in debt. It is set to add another $12.4 trillion over the next ten years. That amounts to a deficit of around $1 trillion a year, or $2.5 billion a day. The country now sustains, as a matter of course, an annual deficit of a size formerly seen only during an economic slump or a major war. It is the de facto policy of the federal government to borrow 20 cents of every dollar it spends. Continue reading “Love Regulation or Hate It, the National Debt Is Not Your Friend”

A Material Change: FCA Defendants Confront Altered Pleading Standard in Ninth Circuit after Rose and Campie

Featured Expert Contributor, False Claims Act

Stephen_Wood_03032014Stephen A. Wood, Chuhak & Tecson, P.C.

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In 2016 the U.S. Supreme Court handed down its decision in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), a watershed in False Claims Act jurisprudence.  The Petitioner asked the Court to decide whether the statute permitted liability for falsely certifying compliance with federal requirements where that certification was not expressly stated, but implied by a defendant’s conduct.  On that issue, the High Court held unanimously in the affirmative, resolving a conflict among the courts of appeals.

In response to defense arguments that the theory would dramatically expand the scope of False Claims Act liability, the Court sought to reassure government contractors that certain pleading and proof principles applicable to these cases would constrain post-Escobar expansion of False Claims Act liability.  Expansive liability “‛can be effectively addressed through strict enforcement of the Act’s materiality and scienter requirements.’ Those requirements are rigorous.”  Escobar, 136 S. Ct. at 2002 (citations omitted).  The Court’s statements regarding the element of materiality in particular have spawned significant litigation in federal courts throughout the country over what type and quantum of evidence bears on the question of whether a claimed violation is material. Continue reading “A Material Change: FCA Defendants Confront Altered Pleading Standard in Ninth Circuit after Rose and Campie

Justice Department Revisits the Wire Act but Stays Enforcement, for Now

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 William E. Moschella, a Shareholder in the firm’s Washington, DC office.

On January 14, 2019, the Department of Justice quietly released a new Office of Legal Counsel (OLC) opinion that sent shockwaves through the internet gambling industry. The opinion purports to reverse OLC’s longstanding interpretation of the federal Wire Act, clarifying that the law applies to all forms of wagering activity that crosses state lines, not just sports betting. The Deputy Attorney General quickly followed up this surprising development with a memorandum directing federal prosecutors to refrain from applying this new interpretation in criminal or civil actions for a period of 90 days. Continue reading “Justice Department Revisits the Wire Act but Stays Enforcement, for Now”

Will a SCOTUS Grant in Berkheimer v. HP Finally Get Alice Out of Wonderland?

Kaminski_Jeffri_LRFeatured Expert Contributor, Intellectual Property—Patents

Jeffri A. Kaminski, Venable LLP

The future of patent-infringement challenges under 35 U.S.C. § 101 may be in the hands of the Solicitor General of the United States. The defendant in Berkheimer v. Hewlett Packard petitioned the U.S. Supreme Court to grant certiorari and overturn a U.S. Court of Appeals for the Federal Circuit decision that applied the high court’s Alice Corporation v. CLS Bank International decision. Hewlett Packard petitioned after the Federal Circuit denied rehearing en banc, a denial that included an exasperated concurrence by two judges seeking further guidance on how the court should interpret Alice. On January 7, the Supreme Court requested the views of the Solicitor General. Continue reading “Will a SCOTUS Grant in Berkheimer v. HP Finally Get Alice Out of Wonderland?”

Class-Action Lawyers Invoke Novel Doctrine to Avoid SCOTUS Jurisdiction Rulings

supreme courtCivil litigation is waged through a series of small battles between plaintiff’s and defendant’s counsel. One initial battle, which can be outcome-determinative, involves where suit can be filed. Plaintiffs’ lawyers want to be in courts in which “friendly” judges preside, while defense counsel want no part of such jurisdictions. U.S. Supreme Court decisions from the past five years, such as Bristol-Myers Squibb v. Superior Court (BMS), have thrown a monkey wrench into plaintiffs’ lawyers’ jurisdiction battle plans. But without fail, plaintiffs’ lawyers, and particularly those who specialize in class actions, devise new arguments. They have argued, with mixed results in the lower courts, that precedents such as BMS don’t dictate jurisdiction for nationwide class actions. Some class-action lawyers are also relying on a rarely used federal common law doctrine—“pendent personal jurisdiction.” Continue reading “Class-Action Lawyers Invoke Novel Doctrine to Avoid SCOTUS Jurisdiction Rulings”