In Ongoing Lawsuit Barrage, Professional Green Activists Disregard Due-Process Concerns

DOIAfter the Executive Branch changed hands a little over two years ago, professional environmental activists promised a steady stream of lawsuits against both private enterprises and the federal government. Such a bold pronouncement was great for the green activists’ fundraising, as environmental non-profits bragged of 100 to 700 percent increases in donations.

Those groups have certainly followed through on their pledge, filling federal district and appellate courts’ dockets with lawsuits. One group’s homepage, for instance, boasts the group has sued the administration 95 times, “and we’re nowhere near finished.” In their zeal to vastly expand the applicability of federal laws and regulations and to block reasonable federal policy changes, green activists have shown little interest in the due-process rights of businesses and individuals. Lawsuits to overturn two federal policies illustrate this disregard. Continue reading “In Ongoing Lawsuit Barrage, Professional Green Activists Disregard Due-Process Concerns”

Regulatory and Legal Barriers to Tech-Company Market Entry, Success, Stubbornly Persist

FTC_Man_Controlling_TradeLast month at The Atlantic Festival, FTC Commissioner Slaughter and former FTC Chair Ohlhausen participated in an enlightening interview on technology regulation. When discussing how the United States approaches regulation compared to other nations, Ohlhausen said the U.S. has such an “enormous presence in the tech space” due in part to America’s “lighter touch” on regulation.

Slaughter questioned whether regulation stifled innovation to the extent Ohlhausen inferred, noting that Silicon Valley is located in a state with a particularly challenging regulatory and legal environments.

Commissioner Slaughter’s comments, and the perspective they represent, merit serious reflection and analysis, especially with the FTC holding an ongoing series of Hearings on Competition and Consumer Protection in the 21st Century. Stakeholders participating in and commenting on those hearings should remind the Commission of regulation’s impact on innovation. Evidence abounds of that connection. Continue reading “Regulatory and Legal Barriers to Tech-Company Market Entry, Success, Stubbornly Persist”

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”

Judge’s Deference to FDA’s Interpretation of “Added Sugar” Regulation Secures Win for Food-Labeling Suit Defendant

GLFoodCourtWhen judges defer to an administrative agency’s interpretation of its own rule, targets of government regulation normally lose out. Private enterprises and organizations like Washington Legal Foundation have been urging the U.S. Supreme Court to reconsider Auer v. Robbins, the precedent that unleashed this doctrine that allows the proverbial fox to guard the hen house. We also routinely criticize class action lawsuits alleging that true statements on food labels are unlawfully false, misleading, unfair, or illegal.

It is not without a sense of irony, then, that we applaud a July 30, 2018 Central District of California opinion in Wilson v. Odwalla, which relied on “Auer deference” in granting the defenant’s motion for summary judgment in a consumer class action suit. The district court faithfully applied Auer to reach the correct decision. The Food and Drug Administration rule at issue in Wilson is clearly ambiguous—a key factor in the Auer analysis. Continue reading “Judge’s Deference to FDA’s Interpretation of “Added Sugar” Regulation Secures Win for Food-Labeling Suit Defendant”

Demands for On-Label Disclosure of Possible Supply-Chain Abuses Fail in Ninth Circuit

GLFoodCourtA little over two years ago on this site, we discussed a new strain of food-labeling class action lawsuits quite unlike the run-of-the-mill “Food Court” litigation. Instead of complaining that consumers had been misled by a food label’s use of a term such as “natural,” these suits claimed harm from a company’s failure to disclose possible human-rights abuses in its supply chain. Products such as animal food and processed chocolate, which include ingredients from foreign locations where forced child labor is prevalent, have been popular targets.

As we noted in the 2016 post, these supply-chain suits found far less success in California federal district courts than have other food-labeling claims. Undeterred by the losses, the plaintiffs’ lawyers appealed to the U.S. Court of Appeals for the Ninth Circuit, forcing the victorious defendants to invest millions more in attorneys’ fees. In a series of opinions issued over the past two months, the appeals court has uniformly affirmed the suits’ dismissals. Continue reading “Demands for On-Label Disclosure of Possible Supply-Chain Abuses Fail in Ninth Circuit”

Commerce-Clause Challenge over Washington Coal-Export Terminal Overcomes First Hurdle

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Port of Longview, WA

In a March commentary, we appraised a legal challenge filed by two companies involved in the mining and delivery of coal against several Washington state officials for their role in blocking approval of a water-port terminal in Longview, Washington. The suit, which has attracted amici curiae briefs from neighboring states and other interested parties, took a step forward on May 30 when Judge Robert J. Bryan denied the defendants’ motion to dismiss. Continue reading “Commerce-Clause Challenge over Washington Coal-Export Terminal Overcomes First Hurdle”

Neither Reason nor Science Supports Class Actions against Diet Soda Makers

 

A Food Court Follies Analysis

No doubt, many a diet soda will be consumed this weekend. Will any of those consumers, though, purchase that soda—in reliance on the manufacturers’ devious use of “diet”—because they think it will assist in weight loss?

diet pepsiThat impression is the basis of a number of copycat consumer class-action lawsuits filed in New York and California by the same lawyers on behalf of soda purchasers against Coca-Cola, PepsiCo, and Dr. Pepper Snapple Group. Four such suits have been dismissed, the most recent being Manuel v. Pepsi-Cola Co. in an pointedly written opinion by U.S. District Court for the Southern District of New York Judge Paul A. Engelmayer. Continue reading “Neither Reason nor Science Supports Class Actions against Diet Soda Makers”