Cleaning Up the Asbestos Litigation Mess: A Role for DOJ?

DOJAsbestos—the heat-resistant, naturally occurring silicate mineral—disappeared from the manufacturing marketplace over 40 years ago. In those four decades, litigation involving asbestos has been as impervious to resolution as the mineral itself is to high temperatures. When we’ve asked mass-tort litigators “what’s the next asbestos?” some have answered—not entirely in jest—”asbestos.”

The reasons for asbestos litigation’s endurance are many, but defendants, judges, and public officials have started to spotlight the role of bankruptcy trusts and plaintiffs’ lawyers’ use of them as both shield and sword. Numerous voices, including state attorneys general and Members of Congress, have called on the U.S. Department of Justice (DOJ) to investigate misconduct and potential fraud. DOJ has a number of potent oversight and enforcement options at its disposal, some of which are discussed below. Continue reading “Cleaning Up the Asbestos Litigation Mess: A Role for DOJ?”

Washington State Officials Usurp Federal Authority with Crusade to Block Export Terminal

Over the past several years, state and local governments have become more aggressive regulators of free-enterprise activity. Some of those states and municipalities have taken action in areas that either federal law or the U.S. Constitution reserve for uniform federal regulation.

For instance, states like Washington and California have either adopted or are pursuing their own “net neutrality” rules after the Federal Communications Commission repealed a 2015 rule. Scores of states, cities, and counties have sued to impose controls on federally approved prescription pain medications that would be different from those required by the Food and Drug Administration. And mayors, county supervisors, and state attorneys general are racing ahead of the federal government with lawsuits aimed at regulating the global concern of climate change.

Another example of what we’ll call extreme federalism has been percolating in the Pacific Northwest for over five years and is now being contested in federal court. Continue reading “Washington State Officials Usurp Federal Authority with Crusade to Block Export Terminal”

Hailing the First Amendment: NYC Taxi Authority’s Ad Ban Struck Down as Unconstitutional

NYCTLCTaxicab, livery, black car, and limousine companies in the Big Apple may own the vehicles their employees drive, but they know full well who really controls them: the New York City Taxi and Limousine Commission (TLC). Passenger transportation is one of the city’s most heavily regulated businesses, but as a federal district court judge recently reminded TLC, those small business still have constitutional rights. Continue reading “Hailing the First Amendment: NYC Taxi Authority’s Ad Ban Struck Down as Unconstitutional”

Law of Copyright Reinterpretation Project Steers ALI Further Off Course

copyrightIn April 2015, a WLF Legal Pulse post expressed concern with a nascent American Law Institute (ALI) project, Restatement of the Law: Copyright. Three years later, the drafting process continues in the face of increasing criticism from intellectual property scholars, ALI members, and even the federal government’s chief copyright official. Some of those critiques echo and amplify the concerns we expressed initially and have repeated in our posts on ALI’s other troubled project, the liability-insurance-law Restatement.  Simply put, the Institute’s ambition to put its own imprint on the law imperils its credibility. Continue reading “Law of Copyright Reinterpretation Project Steers ALI Further Off Course”

New Slate of Commissioners Should Elevate FTC’s Consideration of the First Amendment

FTC_Man_Controlling_TradeThe U.S. Senate Committee on Commerce, Science, and Transportation has scheduled a hearing for tomorrow, February 14, 2018, on the nominations of a new Chairman and three new Commissioners to the Federal Trade Commission (FTC). In recent years, FTC has become the primary national regulator of consumer data privacy and security, a responsibility that accords the Commission a staggering amount of influence over an American economy increasingly fueled by information.

When utilizing that authority over how businesses treat consumer data, the Commission has accorded little or no regard to the First Amendment. Data is speech, a reality that the incoming Chairman and Commissioners must incorporate into consumer-protection enforcement under § 5 of the Federal Trade Commission Act. Continue reading “New Slate of Commissioners Should Elevate FTC’s Consideration of the First Amendment”

Restate or Rewrite?: Stark Choice Faces ALI Leaders on Liability Insurance Law Project

rockThe debate over the American Law Institute’s (ALI) still ongoing Restatement of the Law: Liability Insurance (RLLI) project the mythical struggles of Sisyphus. Since 2015, when ALI—in unprecedented fashion—shifted the venture from an aspirational “Principles Project” to a Restatement, stakeholders and a growing number of third parties concerned with the project’s direction have been pushing the proverbial rock up the hill.

Throughout the drafting process, concerns have been consistently raised that multiple RLLI sections either depart from settled insurance-liability principles or establish entirely new rules. Each time, the RLLI’s Reporters issued a new draft that was nearly identical to the last.

With the release of Council Draft No. 4 for discussion at a January 18, 2018 conclave of the ALI Council—a final step in the approval process before the group’s May annual meeting—the uphill resistance has resumed and intensified. What transpires over the next week could have a profound impact not only on the insurance liability system and its stakeholders, but on ALI itself. Continue reading “Restate or Rewrite?: Stark Choice Faces ALI Leaders on Liability Insurance Law Project”

Textbook Application of “Obstacle” Preemption Negates Activists’ Organic Food-Labeling Suit

formulaFood Court Follies—A WLF Legal Pulse Series

Several of our recent commentaries (here and here) have extolled the virtues of national uniformity for the regulation of interstate commerce. Those posts focused on litigation involving federally regulated prescription drugs and devices. But state consumer-protection litigation poses an even greater threat to regulatory uniformity.

Federal preemption—the constitutional doctrine that state-law litigation targets regularly cite as a defense—has generally been an ineffective argument against consumer-protection suits, especially those alleging misleading or false labeling of food and other packaged goods. A January 3, 2018 federal trial court ruling, Organic Consumers Association v. Hain Celestial Group, Inc., is a welcome exception to that trend. It’s also notable for how clearly the court explained implied preemption and the broader principle of uniformity underlying the defense. Continue reading “Textbook Application of “Obstacle” Preemption Negates Activists’ Organic Food-Labeling Suit”