The Dog That Didn’t Bark in the Night: SCOTUS’s “NIFLA v. Becerra” and the Future of Commercial Speech

supreme court

The U.S. Supreme Court last week issued its long-awaited opinion in National Institute of Family and Life Advocates v. Becerra. In a 5-4 decision authored by Justice Clarence Thomas, the Court held that a California law requiring licensed pro-life counselling clinics to direct their clients to abortion providers  likely violated the clinics’ free speech rights under the First Amendment. Like the famous dog that didn’t bark in the night,[*] however, Justice Thomas’s majority opinion in NIFLA is far more revealing for what it doesn’t say than for what it does say. Continue reading “The Dog That Didn’t Bark in the Night: SCOTUS’s “NIFLA v. Becerra” and the Future of Commercial Speech”

West Virginia’s High Court Rejects Novel Theory of “Innovator Liability”

west vaShould the law recognize a plaintiff’s tort claims against a branded drug manufacturer when the drug that allegedly caused the plaintiff’s injuries was manufactured and sold by the defendant’s generic competitor? State and federal courts have been grappling with this novel question of “innovator liability” ever since the U.S. Supreme Court held, in Pliva and Bartlett, that such tort claims against generic manufacturers are preempted under federal law.

At bottom, innovator liability seeks to hold innovator drug manufacturers liable for injuries resulting from products they neither manufactured nor sold. Such “deep pocket jurisprudence,” as a recent Washington Legal Foundation paper by Shook Hardy & Bacon’s Victor Schwartz explains, marks a radical departure from long-settled principles of product liability premised on a naked policy decision that shifts financial responsibility onto a third party with the deepest pockets. Continue reading “West Virginia’s High Court Rejects Novel Theory of “Innovator Liability””

Novel Theory of NLRA Liability Would Trample Employers’ Free Speech Rights

NLRBThe independent-contractor model has been an important catalyst for improving the nation’s economic vitality. Because individuals often provide services for others while maintaining independent control over the means and methods of their own work, the use of independent contractors fosters an entrepreneurial spirit while giving firms that contract with such individuals an increased flexibility that promotes efficiency and innovation.

In recent years, however, federal regulators have increasingly pressured businesses to move away from the use of independent contractors, who are not legally entitled to unionize under federal law. Among federal agencies, the National Labor Relations Board (NLRB) has led this charge. Beginning with the last administration, the NLRB has intensely scrutinized and second-guessed companies’ worker-classification determinations, often deeming independent contractors to be “employees” under the National Labor Relations Act (NLRA). At great expense in time and resources, some companies have successfully appealed from the NLRB’s employment-classification rulings in federal court. Continue reading “Novel Theory of NLRA Liability Would Trample Employers’ Free Speech Rights”

Second Circuit Shuts Down Duplicative Regulation by Litigation of Organic Products

organicA January 9, 2018 WLF Legal Pulse post applauded a federal district court’s textbook application of implied-preemption analysis in dismissing a consumer-protection suit that alleged mislabeling of an organic infant formula. A recent decision of the U.S. Court of Appeals for the Second Circuit in Marentette, et al. v. Abbott Laboratories, Inc. similarly utilized implied preemption to reject a putative class action presenting nearly identical claims involving another brand of organic infant formula. The decision should put an end to plaintiffs’ use of state consumer-protection suits to regulate products bearing the U.S. Department of Agriculture’s (USDA) “Organic” symbol. Continue reading “Second Circuit Shuts Down Duplicative Regulation by Litigation of Organic Products”

Another California Intrusion on Businesses’ Free Speech Fails in Court

FirstAmendmentFor a state with cities like Berkeley, which birthed the Free Speech Movement 54 years ago, California’s record on respecting the First Amendment is surprisingly spotty. That is especially true for the expressive activities of businesses. The state, as well as its municipalities, often curtail businesses’ speech, or compel them to speak, as a way to demonstrate government is “doing something” to solve complex social or public-health problems.

Occasionally, but not nearly often enough, courts reintroduce California’s censors to the First Amendment, as the U.S. Court of Appeals for the Ninth Circuit did last year in striking down San Francisco’s warning-label mandate for “sugary” drinks. On February 20, a Northern District of California judge handed the state its latest speech-regulation defeat, striking down a law designed to limit information that entertainment database company IMDb.com could publish (IMDb.com Inc. v. Becerra). Continue reading “Another California Intrusion on Businesses’ Free Speech Fails in Court”

Cutting the Cord: “Smart TV Box” Devices and Copyright Infringement

copyright

Innovative ways to view broadcast content such as scripted shows, sporting events, and recently released movies are advancing at breakneck speed. Buyers should beware, however, that not all methods for accessing entertainment content are on the up-and-up. Several devices, for instance, promise extreme “cord-cutting” and incredibly wide access to content at a relatively low, one-time cost.

There’s a good reason why these devices are so cheap and offer so much: they provide a gateway to pirated content, facilitating copyright infringement on a massive scale. Unsurprisingly, the sellers of two such “smart TV boxes” are embroiled in copyright litigation. Continue reading “Cutting the Cord: “Smart TV Box” Devices and Copyright Infringement”

Federal Court’s Embrace of FTC Data-Breach Settlements as “Common Law” Treads on Due Process

d of washingtonThe Federal Trade Commission (FTC) has developed a well-known penchant for using individually negotiated settlement agreements and consent decrees to announce for the first time what qualifies as “unfair” or “deceptive” conduct under the FTC Act. In the data-privacy arena, FTC views these enforcement actions (and the resulting consent decrees) as a source of “common law” that places the business community on sufficient notice of what data-security practices § 5 of the FTC Act requires.

The U.S. District Court for the Western District of Washington recently ratified that view in a controversial ruling, Veridian Credit Union v. Eddie Bauer. The case arose following a 2016 cyberattack on Eddie Bauer’s network that compromised customers’ payment-card data. Veridian Credit Union, whose cardholders had their data stolen after shopping at Eddie Bauer, brought suit under Washington’s Consumer Protection Act (CPA), which like § 5 of the FTC Act also allows courts to award treble damages to private plaintiffs who are injured by “unfair” or “deceptive” acts. Veridian alleged that Eddie Bauer’s failure to adopt data-security measures that FTC has required in other cases constitutes an “unfair” practice under the Washington CPA. Continue reading “Federal Court’s Embrace of FTC Data-Breach Settlements as “Common Law” Treads on Due Process”