Update: Supreme Court to Decide Whether the CWA Regulates Discharges through Groundwater to Waters of the United States

Sam Boxerman, Featured Expert Contributor, Environmental Law and Policy

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As we anticipated in our post last year, the Supreme Court has granted a petition for a writ of certiorari from the Ninth Circuit in County of Maui v. Hawaii Wildlife Fund. The justice will decide whether the Clean Water Act (CWA) regulates discharges through groundwater that reach a water of the United States (WOTUS). The certiorari grant embraced the Solicitor General’s view, who filed an amicus brief urging the Court to take the case and decide the groundwater discharge issue.

This issue has become a prominent one in CWA jurisprudence recently, with three circuit courts of appeals weighing in on the issue in five decisions in 2018 alone. The circuits are split; the Ninth Circuit and the Fourth Circuit have determined that the CWA does regulate discharges to groundwater, while the FifthSixth, and Seventh Circuits have held that it does not.

If the Court ultimately sustains the Ninth Circuit’s approach, Maui will have far reaching implications for CWA regulation and enforcement, particularly for spills and other releases that reach groundwater. Moreover, the Court is addressing the case at the same time that EPA and the Corps are receiving comments on their proposed revised definition of what is a water of the United States.  Although Maui is not expected to address the definition of WOTUS, the decision will bear close reading for any Supreme Court insights into that all-important Clean Water Act term.

The Court added Maui to the docket for its October Term 2019, which begins this fall on October 7.

*Sam Boxerman is a Partner in the Washington, DC office of Sidley Austin LLP.

 

The First Amendment in the Supreme Court: “Scandalous” Trademarks and Labor Unions

Megan Brown, Featured Expert Contributor, First Amendment

Continue reading “The First Amendment in the Supreme Court: “Scandalous” Trademarks and Labor Unions”

Supreme Court’s DeVries Decision Doesn’t Spell the End of “Bare Metal” Defense in Asbestos Cases

Featured Expert Contributor, Mass Torts—Asbestos

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

Last month, the United States Supreme Court rejected the “bare metal” defense to products liability claims in maritime cases.  Air & Liquid Systems v. DeVries, No. 17-1104, 2019 WL 1245520 (U.S. Mar. 19, 2019).  Some have predicted that the decision marks the beginning of the end for that defense even outside the maritime context.  But the prediction is premature.  The DeVries decision comes after the highest courts in some states have already embraced the “bare metal” defense and in doing so rejected the same arguments that the DeVries majority has now endorsed.  Those state decisions will continue to control in those jurisdictions, at least in non-maritime cases.  Further, those state courts are unlikely to reverse course and accept arguments that they so recently rejected.

In DeVries, the families of naval veterans who had died of cancer brought products liability claims against the manufacturers of pumps, blowers, and turbines used on naval ships, claiming that the manufacturers were negligent in failing to warn of the risks of asbestos-containing insulation the Navy used with their products.  The district court granted summary judgment for the manufacturers, holding that under the “bare metal” defense, the manufacturers were not liable for failing to warn about asbestos-containing products that they did not manufacture or supply.  The U.S. Court of Appeals for the Third Circuit reversed, holding that the manufacturers had a duty to warn because it was “foreseeable” that the asbestos-containing products would be used with their products. Continue reading “Supreme Court’s DeVries Decision Doesn’t Spell the End of “Bare Metal” Defense in Asbestos Cases”

Honest Services Fraud Back in the Spotlight with “Operation Varsity Blues”

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 Stanley L. Garnett, a Shareholder in the firm’s Denver, CO office.

The charges federal prosecutors have filed in the “Operation Varsity Blues” college-admissions corruption scandal have thrust the federal crime of honest services fraud back into the spotlight.  Over the past two or three decades, this section of the federal criminal code has been the subject of much controversy.  Although the facts alleged in the various Operation Varsity Blues charging documents are unseemly, at best, and the evidence seems overwhelming, the government’s reliance on the honest services fraud statute is likely to renew the debate in white collar defense circles about what exactly the statute means and whether it is appropriately applied to private-sector actors. Continue reading “Honest Services Fraud Back in the Spotlight with “Operation Varsity Blues””

Third Circuit Builds on Post-Spokeo “Bare Procedural Violation” Standing Jurisprudence

Featured Expert Contributor—Civil Justice/Class Actions

Frank Cruz-Alvarez, a Partner in the Miami, FL office of Shook, Hardy & Bacon L.L.P., with Erica E. McCabe, an Associate in the firm’s Kansas City, MO office.

On March 8, 2019, the U.S. Court of Appeals for the Third Circuit, in Kamal v. J. Crew Grp., Inc., et al., ___F.3d___, 2019 WL 1087350 (3d Cir. Mar. 8, 2019), affirmed the U.S. District Court for the District of New Jersey’s judgment that plaintiffs’ putative class complaint failed to properly assert Article III standing under the guidelines established by Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Spokeo I).  In so holding, the Third Circuit joined its sister courts from the Second, Eighth, and Ninth Circuits in establishing that alleged procedural violations do not create Article III standing unless “the violation actually harms or presents a material risk of harm to the underlying concrete interest.”  Kamal, 2019 WL 1087350, at *17.  

In Kamal, the putative class alleges that J. Crew Group, Inc. (“J. Crew”) violated provisions of the Fair and Accurate Credit Transactions Act of 2003 (“FACTA” or the “Act”), 15 U.S.C. § 16801c(g), when it printed receipts showing the first six and last four digits of plaintiffs’ credit card numbers.  Kamal, 2019 WL 1087350, at *3.  In addition to the bare statutory violation, the putative class alleges that the offending receipts put them at an increased risk of identity theft. Continue reading “Third Circuit Builds on Post-Spokeo “Bare Procedural Violation” Standing Jurisprudence”

Third Circuit Limits the FTC’s Authority to Challenge Ceased Conduct

Featured Expert Contributor, Antitrust & Competition Policy — Federal Trade Commission

M. Sean Royall, a Partner at Gibson, Dunn & Crutcher LLP, with Richard H. Cunningham, a Partner and Emily Riff, an Associate, both with the firm.

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On February 25, 2019, the Third Circuit issued a decision affirming the District of Delaware’s dismissal of the FTC’s “sham petitioning” case against Shire ViroPharma (Shire), the manufacturer of the branded drug Vancocin.  The Court of Appeals held that to proceed pursuant to § 13(b) of the FTC Act, the FTC must plead facts plausibly showing that Shire is “about to violate” the antitrust laws, but failed to do so because the challenged conduct ceased years before the lawsuit and the FTC’s allegations were otherwise insufficient to meet the “about to violate” standard.

The decision may substantially limit the FTC’s ability to invoke § 13(b) in cases where the challenged conduct is not ongoing.  This is significant because the agency has, for years, successfully used § 13(b) to challenge past conduct in both the antitrust and consumer-protection contexts in federal court to obtain injunctive and equitable monetary relief.   Continue reading “Third Circuit Limits the FTC’s Authority to Challenge Ceased Conduct”

Mr. Hinman’s Metaphysics: Some Thoughts on Reexamining the Utility Token

Featured Expert Contributor, Legal & Regulatory Challenges for Digital Assets

Alter_Daniel_web2_8784879218361By Daniel S. Alter, a Shareholder in the New York, NY office of Murphy & McGonigle P.C.

A common criticism of Sigmund Freud is that he built a theory of the human psyche based largely upon experiences of the mentally ill.  The U.S. Securities and Exchange Commission’s (SEC) approach to regulating crypto assets labors under a similar bias.  The agency has developed a regulatory construct largely in response to a period of widespread abusive conduct in the digital markets.  Although the SEC’s intervention was historically justified, it may be time to reexamine and refine that regulatory construct in ways that still protect investors but better promote innovation.

Two years back, when billions of dollars in initial coin offerings (ICOs) hit the market—many of which were rife with fraud—the SEC invoked SEC v. W.J. Howey Co., 328 U.S. 837 (1946), to bring matters under control.  Applying the Howey test, the agency concluded that digital tokens, when used to raise capital, can fall within the definition of a “security” under the Securities Act and are thus subject to federal regulation as such.  A digitized security or “security token,” the SEC reasoned, is still a security—regardless of its transactional medium. Continue reading Mr. Hinman’s Metaphysics: Some Thoughts on Reexamining the Utility Token”