Philadelphia’s Wage-History Ordinance Faces First Amendment Challenge

Guest Commentary

By Stephanie J. Peet, a Partner in the Philadelphia, PA office of Jackson Lewis P.C. She writes for the firm’s Pay Equity Advisory Blog.

The number of jurisdictions considering and enacting legislation that bars employer inquiries about and reliance on job applicants’ salary or wage history has been growing. A legal challenge to the Philadelphia’s ban promises to be instructive and is worth watching.

The Philadelphia Ordinance

 On December 8, 2016, the Philadelphia City Council passed a bill prohibiting employers from inquiring about the wage history of prospective employees (the “Ordinance”). The Ordinance, intended to alleviate “gender-based pay discrimination,” was scheduled to take effect on May 23, 2017. In April, however, the Chamber of Commerce for Greater Philadelphia filed a complaint and motion for a preliminary injunction against the City of Philadelphia and the Philadelphia Commission on Human Relations, ultimately seeking to have the law struck down. The City voluntarily halted enforcement of the Ordinance while the lawsuit is pending. Continue reading

Fourth Circuit Upholds Application of Government-Contractor Defense in Asbestos Suit

Featured Expert Contributor: Mass Torts—Asbestos

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

The US Court of Appeals for the Fourth Circuit recently applied the Boyle government-contractor defense to a failure-to-warn claim in an asbestos case.  Sawyer v. Foster Wheeler LLC, 860 F.3d 249 (4th Cir. 2017).  In doing so, the court wisely rejected a narrow interpretation of the defense favored by other federal circuit courts.

The defense derives its name from Boyle v. United Technologies Corp., 487 U.S. 500, 501 (1988), which held that, in order to avoid indirectly penalizing the United States government for its discretionary decisions concerning the purchase of military equipment, contractors supplying that equipment would be immune from state product-liability claims where (1) the government approved reasonably precise specifications for the equipment; (2) the equipment conformed to those specifications; and (3) the contractor warned the government of any dangers known to the contractor about which the government was unaware. Continue reading

SCOTUS Report: A Fruitful Term for Free Enterprise, the Rule of Law—and WLF

supreme courtAn economic system based on free enterprise requires an objective, clear, predictable, stable, and uniform body of rules around which commercial enterprises can organize their business affairs. For 40 years, Washington Legal Foundation (WLF) has championed fundamental free-enterprise principles in courts and regulatory agencies, as well as in the court of public opinion.

Because the US Supreme Court has the last word on many laws and regulations that affect free enterprise, WLF focuses a significant portion of its litigation activities each year on convincing the justices to decide cases in a manner that promotes legal clarity and uniformity. This past term, which concluded at the end of June, was one of WLF’s most successful in its long history of Supreme Court advocacy. Our view not only prevailed in 8 of the 10 cases in which we filed amicus briefs on the merits, but in 6 of those 10 cases, WLF also successfully supported the Petitioner’s effort to obtain Supreme Court review. Below is a list of those cases with links to press releases and related WLF commentary:

Cases in which WLF filed briefs at the cert. and merits stages

Cases in which WLF filed a brief only at the merits stage

Most of those decisions, and others that impact America’s free-enterprise system, were discussed at WLF’s 28th annual end-of-the-term Supreme Court briefing:

Update: Justice May Yet be Served in 30-Year-Old EPA Wetlands Case Against Small Erie, PA Farmer

Guest Commentary

By Lawrence A. Kogan*

An April 20, 2017 WLF Legal Pulse post on the need for a new strategy for federal wetlands regulation presented a long-running enforcement action against a small Erie, Pennsylvania farmer as indicative of the harm wrought by the government’s deeply flawed current approach to “waters of the United States” (WOTUS). Two recent developments—an order by a federal magistrate judge in the US District Court for the Western District of Pennsylvania and the filing of three Federal Tort Claims Act (FTCA) claims by the targeted farmer, Robert Brace—might significantly change the course of this 30-year law-enforcement misadventure.

The US Environmental Protection Agency (EPA) first initiated a lawsuit under § 404 of Clean Water Act (CWA) against Brace in 1990 (United States v. Brace). The suit claimed Brace unlawfully failed to obtain a US Army Corps of Engineers (Army Corps) dredge-and-fill permit for drainage-tilling activities undertaken on government-designated wetlands.  The suit came after Brace, a well-known property rights advocate, had endured three years of being served with EPA, Corps, and US Fish & Wildlife Service (FWS) administrative-violation notices. Continue reading

Because of “Winn-Dixie”?: Uncertainty over ADA’s Applicability to Websites Deepens

Featured Expert Contributor – Civil Justice/Class Actions

Cruz-Alvarez_FBy Frank Cruz-Alvarez, Shook, Hardy & Bacon L.L.P., with Rachel Canfield,  Shook, Hardy & Bacon L.L.P.

Ever since the codification of the American’s with Disabilities Act (ADA) in 1990, brick and mortar businesses have been obligated to ensure their physical spaces are accessible to all individuals.  The advent of the internet—and with it, creation of an entirely new, intangible, space—has ushered in a whole new host of legal challenges.  The combination of uncharted legal waters and ongoing regulatory moratoriums has produced extensive litigation over recent years.  In this new frontier, businesses and consumers alike have begun to question whether the ADA also applies to a business’s intangible, technological spaces.

There is very little structure, and even less clarity, in this emerging area of the law.  Federal courts remain split over whether the ADA applies only to physical spaces and to date, no federal agency or organization has been tasked with overseeing or implementing website accessibility guidelines.  Instead, the Web Accessibility Initiative publishes a set of guidelines—the Web Content Accessibility Guidelines (WCAG 2.0)—on web-content accessibility.  Continue reading

Will “Kokesh v. SEC” Put a Kink in the Federal Trade Commission’s Disgorgement Hose?

Featured Expert Column: Antitrust & Competition Policy — Federal Trade Commission

06633 - Royall, M. Sean ( Dallas )By M. Sean Royall, a Partner with Gibson, Dunn & Crutcher LLP, with Richard H. Cunningham, Of Counsel in the firm’s Denver, CO office.*

Ed. Note: This is Mr. Royall’s debut column as the WLF Legal Pulse‘s new Antitrust & Competition Policy, FTC “Featured Expert Contributor.” WLF recognizes and appreciates former FTC Featured Expert Contributor Andrea Murino‘s four years of serving in that pro bono position.

On June 5th, 2017, the Supreme Court held in Kokesh v. SEC that disgorgement is a “penalty” subject to a five-year statute of limitations under 28 U.S.C. § 2462.  With that ruling, the Court explicitly rejected the long-standing assertion of the Security and Exchange Commission (SEC) that it possesses authority to reach back indefinitely when seeking the disgorgement of ill-gotten gains.  While the Kokesh opinion explicitly limits its holding to disgorgement “as it is applied in SEC enforcement proceedings,”1 the Court’s logic extends to disgorgement actions brought by other agencies proceeding under analogous statutory authority, including the Federal Trade Commission (FTC). Continue reading

Update: Another Instance of Drunk Suing Ushered Out of Court

fosters

A few months ago we blogged about a lawsuit where the plaintiffs alleged they were deceived by the “Hawaiian-ness” that Kona Brewing Company conveyed on their beer labels.  The case was emblematic of a series of suits alleging that because beers were seemingly marketed as “foreign,” but produced in a domestic location, the brewers tricked the public into making purchases.  In addition to Kona, the makers of Red Stripe, Sapporo, Kirin Ichiban, and Beck’s have all been dragged into court.

Luckily, those brewers who fought back have been winning.  As mentioned in that previous commentary, the makers of both Red Stripe and Sapporo successfully petitioned their respective courts to dismiss their plaintiffs’ cases.  We can now add Fosters to the list.  Because Fosters’ product labels specifically state that brewing occurred in Georgia and Texas, no consumer would reasonably believe that it was imported from Australia.

With defeats piling up, let’s hope that the plaintiffs’ attorneys behind these frivolous claims will put an end to their “drunk suing.”