On Issue of First Impression, Fifth Circuit Applies CAFA in Mass-Tort Cases to Deny Remand

Cruz-Alvarez_FFeatured Expert Contributor—Civil Justice/Class Actions

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

On January 9, 2018, the U.S. Court of Appeals for the Fifth Circuit, in the consolidated interlocutory appeals of Warren Lester, et al. and Shirley Bottley, et al., affirmed the district court’s decision denying the plaintiffs’ motions to remand their respective cases back to Louisiana state court.

Interpreting the Class Action Fairness Act of 2005 (CAFA) broadly, the Fifth Circuit majority confirmed that (1) a proposal for a joint trial of related state court cases triggers a “mass action” under CAFA, and (2) CAFA provides a basis for removal even when one of the underlying suits was filed before the law’s February 18, 2005, effective date. Lester, et al. v. Exxon Mobil Corp., et al., 2018 U.S. App. LEXIS 547 at *3–4 (5th Cir. Jan. 9, 2018). Continue reading “On Issue of First Impression, Fifth Circuit Applies CAFA in Mass-Tort Cases to Deny Remand”

U.S. Supreme Court Agrees to Review Endangered Species Act Case

st_tammany_navCan the U.S. government designate a private landowner’s property as “critical habitat” for a threatened or endangered species if the species does not currently inhabit the land and could not do so unless the property owner agrees to modifications of his land? The U.S. Supreme Court agreed this morning to address those questions by granting a petition for certiorari in Weyerhaeuser Co. v. U.S. Fish and Wildlife Services.

Washington Legal Foundation filed an amicus brief in support of the Petitioner, who was represented by past WLF publication author and program speaker Timothy Bishop of Mayer Brown LLP.

WLF has also published a number of commentaries on Weyerhaeuser on this blog, which are listed below.

The Supreme Court’s “American Express” Antitrust Case: What’s at Stake

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

By Anthony W. Swisher, a Partner in the Washington, DC office of Squire Patton Boggs (US) LLP.

With the New Year comes the opportunity to consider the cases to the U.S. Supreme Court will hear in the second half of its October Term 2017. As has become routine in the last several years, the Court has an antitrust case on its docket. In Ohio v. American Express Co., the justices will have the opportunity to consider the proper application of the rule of reason to vertical agreements between credit card companies and merchants. The case presents important substantive issues, but also provides a chance to see whether the Court’s recent trends in antitrust enforcement will continue. The justices will hear arguments in the case on February 26. Continue reading “The Supreme Court’s “American Express” Antitrust Case: What’s at Stake”

Influencer Marketing Remains in FTC’s Crosshairs

06633 - Royall, M. Sean ( Dallas )Featured Expert Column: Antitrust & Competition Policy — Federal Trade Commission

By M. Sean Royall and Richard H. Cunningham, Partners with Gibson, Dunn & Crutcher LLP, and Andrew B. Blumberg, an Associate in the firm’s Dallas, TX office.  The authors would like to thank Philip Jacob Spear, who is also an Associate in Gibson Dunn’s Dallas office, for his substantial contributions to this post.

Social media “influencers” are individuals with large followings on social media platforms, including Facebook, Instagram, YouTube, Twitch, Twitter, and Snapchat, among others.   Influencers include various members of the Kardashian family, a wide array of professional athletes, and individuals whose broad following is home-grown online and on social media. Influencers may tout products or services on their social media pages or feeds in exchange for compensation, effectively turning themselves into an advertising channel. Continue reading “Influencer Marketing Remains in FTC’s Crosshairs”

Update: Ninth Circuit Issues First Amendment Ruling on Credit-Card Surcharge Law

9thCirA post last month, Second Circuit Improperly Ducks Important First Amendment Issues, criticized the U.S. Court of Appeals for the Second Circuit’s decision to certify a question to New York’s highest court in a challenge to a state law restricting merchants’ ability to inform their customers of credit-card surcharges. WLF Chief Counsel Richard Samp argued that the court possesses all the information it needs to decide Expressions Hair Design v. Schneiderman. WLF filed an amicus brief in support of the petitioner in that case.

On January 3, the Ninth Circuit decided the same issue the Second Circuit had ducked involving an analogous law. The court found that a California law that prohibited merchants from imposing a surcharge to cover credit-card fees, but allowed them to provide discounts to cash customers, violated the First Amendment rights of five California businesses. Italian Colors Rest. v. Becerra. Continue reading “Update: Ninth Circuit Issues First Amendment Ruling on Credit-Card Surcharge Law”

The “No-Safe-Level” Theory Is Just as Bad in the Real World as in Litigation

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

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

Plaintiffs who allege cancer from asbestos often rely on the theory that there is no safe level of exposure.  Because there is no safe level, any exposure can be considered a cause of disease, so the theory goes (I’ve written for this blog on the theory here.).  That causation theory has been criticized on the ground it conflates causation with the risk of injury.  The flaws with that theory when it’s applied to asbestos litigation become all the more apparent when it is applied in other, real-world contexts.  The concept of no safe level can cause policy makers to exaggerate risks and can even lead to unnecessary injuries. Continue reading “The “No-Safe-Level” Theory Is Just as Bad in the Real World as in Litigation”

President Commutes Sentence of Business Owner Victimized by Overcriminalization

rubashkinOn Wednesday, December 20, President Trump issued a statement commuting the sentence of Sholom Rubashkin, the former CEO of a kosher meatpacking plant. He had been convicted of financial fraud in 2009 and sentenced to 27 years in prison—a virtual life sentence for the then-51-year old Rubashkin. He had served 8 years of that sentence. Washington Legal Foundation actively participated in the courtroom and public resistance to the excessive sentence through amicus briefs and published commentaries. Continue reading “President Commutes Sentence of Business Owner Victimized by Overcriminalization”