Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City

Big AppleBy Holton Westbrook, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering his third year at Texas Tech University School of Law in the fall.

New York City recently suffered the latest loss in municipalities’ legal fight against climate change when the U.S. District Court for the Southern District of New York threw out the city’s attempt to hold BP, Chevron, ExxonMobil, and other oil companies liable for injuries allegedly caused by carbon emissions. The Big Apple has signaled its intention to appeal its loss to the U.S. Court of Appeals for the Second Circuit, but the trial court’s reasoning is well within the mainstream of judicial thinking on the issues at stake, and its ruling should be upheld. Continue reading “Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City”

New “WLF Month in Review” Chronicles Our Litigation and Regulatory Filings and Results

WLF Month in ReviewWashington Legal Foundation has released the inaugural edition of a newsletter, “WLF Month in Review,” that will keep our supporters, friends, and other interested parties informed about the litigation briefs we have filed and the regulatory proceedings in which we are participating.

The August 2018 edition includes developments from June and July, and can be viewed here. If there is a particular item you are interested in, clicking on that item on the first page will take you to a full description.

Supreme Court to Once Again Examine Limits of Rule 10b-5 Liability in October Term 2018 Case “Lorenzo v. SEC”

bainbridgeFeatured Expert Contributor, Corporate Governance/Securities Law

Stephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law.

Rule 10b-5 long has been the centerpiece of the Securities and Exchange Commission’s antifraud enforcement efforts. At times, in fact, the SEC’s interpretation of the Rule has been so broad that the rule threatened to “become a universal solvent, encompassing not only virtually the entire universe of securities fraud, but also much of state corporate law.”[1] In a long series of cases, however, the U.S. Supreme Court has gradually imposed a series of important limits on the SEC’s scope.[2] By taking cert in Lorenzo v. SEC, the Court has given itself an opportunity to impose another such limit. Continue reading “Supreme Court to Once Again Examine Limits of Rule 10b-5 Liability in October Term 2018 Case “Lorenzo v. SEC””

Missouri’s Unjustifiable Alcohol Ad Limits Can’t Survive First Amendment Challenge

FirstAmendmentBy Courtney Dean, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Restrictions on the speech of “disfavored” products merit all the more judicial scrutiny because they are easy targets for creating precedents. Earlier this summer, a federal court in the Western District of Missouri rightfully struck down three state restrictions on alcoholic beverage advertising. The court in Missouri Broadcasters Association v. Taylor reinforced the principle that states cannot arbitrarily stifle truthful, non-misleading commercial speech. Continue reading “Missouri’s Unjustifiable Alcohol Ad Limits Can’t Survive First Amendment Challenge”

Three Antitrust Developments to Watch in Wake of High Court’s “Ohio v. American Express” Ruling

swisherFeatured Expert Column: Antitrust & Competition Policy — U.S. Department of Justice

By Anthony W. Swisher, a Partner in the Washington, DC office of Baker Botts LLP

As vertical issues continue to attract attention in the world of antitrust, the U.S. Supreme Court’s decision in Ohio v. American Express was a long-awaited milestone.  The outcome of the decision was not surprising—many commenters had predicted that a Court that has generally been skeptical of antitrust plaintiffs would uphold the U.S Court of Appeals for the Second Circuit’s decision in favor of American Express—but a few features of the decision were noteworthy.

Recall that the case involved Amex’s use of non-discriminatory provisions, or “NDPs,” that prevent a merchant that accepts Amex cards from engaging in strategic behavior to steer customers toward use of a different payment card that might carry a lower transaction fee for the merchant. At issue was whether the NDPs constituted unreasonable restraints that suppressed interbrand competition by preventing merchants from favoring lower-cost payment methods by customers. Continue reading “Three Antitrust Developments to Watch in Wake of High Court’s “Ohio v. American Express” Ruling”

Oklahoma High Court Rejects “Stream of Commerce” Doctrine as Basis for Specific Jurisdiction

Isaac-05115Guest Commentary

By Gary Isaac, Counsel in Mayer Brown LLP’s Litigation department. He has extensive experience litigating personal jurisdiction issues.

In the past several years, the U.S. Supreme Court has issued several decisions significantly limiting the assertion of personal jurisdiction over nonresident defendants.1 However, it has been left to the lower state and federal courts to apply the principles delineated by the Supreme Court. One recent personal jurisdiction decision of note is Montgomery v. Airbus Helicopters, Inc., 414 P.3d 824 (Okl. 2018), which concluded that in the wake of Walden and Bristol-Myers Squibb (“BMS”), the “stream of commerce” doctrine is no longer a viable basis for specific jurisdiction. Continue reading “Oklahoma High Court Rejects “Stream of Commerce” Doctrine as Basis for Specific Jurisdiction”

‘Merck, Sharpe & Dohme v. Albrecht’: The Supreme Court’s Chance to Re-Open a Preemption Door the Third Circuit Tried to Close Forever

Joe_Hollingsworth_thumbnail 1Featured Expert Contributor, Litigation Strategies

By Joe G. Hollingsworth, Partner, Hollingsworth LLP, with Stephen A. Klein, Partner, Hollingsworth LLP

*Ed. Note: This is Mr. Hollingsworth’s inaugural post as the WLF Legal Pulse’s newest Featured Expert Contributor. He is a nationally renowned courtroom advocate who specializes in trials and appeals and leads a practice group of seventy-five attorneys. 

No one ever said preemption should be easy.  But then there’s the U.S. Court of Appeals for the Third Circuit’s preemption decision last year in Merck, Sharpe & Dohme v. Albrecht, 852 F.3d 268 (3d Cir. 2017).  Continue reading “‘Merck, Sharpe & Dohme v. Albrecht’: The Supreme Court’s Chance to Re-Open a Preemption Door the Third Circuit Tried to Close Forever”