Fourth Circuit: Unsubstantiated Risks Related to Data Breach Insufficient for Article III Standing

Civil Justice/Class Actions

Cruz-Alvarez_FFrank Cruz-Alvarez, a Partner in the Miami, FL office of  Shook, Hardy & Bacon L.L.P. with Rachel Forman, an Associate with the firm.

On February 6, 2017, the U.S. Court of Appeals for the Fourth Circuit, in the consolidated appeal Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017), affirmed the district court’s order dismissing the plaintiff veterans’ putative class-action claims against the Secretary of Veterans Affairs and Dorn Veterans Affairs Medical Center (“Dorn VAMC”) officials for lack of subject-matter jurisdiction.  The Fourth Circuit held that the plaintiffs “failed to establish a non-speculative, imminent injury-in-fact for purposes of Article III standing.” Id. at 267. Continue reading

After SCOTUS’s “Escobar” Decision, Courts Increasingly Sink Implied-Certification FCA Suits

scales of justiceOver the last two decades, the False Claims Act (FCA) has become a popular tool for plaintiffs—and qui tam attorneys—to enrich themselves at the expense of government contractors.  To keep the profits flowing, private plaintiffs, called relators, have invented new legal theories under which to bring their claims. As they test the FCA’s bounds, defendants have urged courts to maintain the law’s traditional limits. Last June, the US Supreme Court addressed one of FCA relators’ more successful liability expansions: the “implied-certification” theory. As a recent WLF Legal Backgrounder notes, though the Court affirmed the availability of this liability theory in Universal Health Services v. US ex rel. Escobar, it also urged lower courts to carefully scrutinize relators’ complaints as a way of limiting the implied-certification claims. Federal appellate courts have begun taking the Supreme Court at its word and have rejected claims that cannot establish materiality or satisfy the FCA’s scienter requirement. Continue reading

Reversing Four-Year Old Legislative Action, Florida Supreme Court Reduces Scrutiny of Expert Testimony

Featured Expert Column –Judicial Gatekeeping of Expert Evidence

Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

In 2013, the Florida Legislature replaced the Frye standard with the Daubert standard by enacting statutory language that mirrors Federal Rule of Evidence 702. Presumably, that should have been the end of the matter. Daubert should now govern the admissibility of expert testimony in Florida state courts.

The Florida Supreme Court, however, has a history of rejecting procedural aspects of the Florida Evidence Code that the legislature enacts. To do so, the court invokes its authority over the rules of practice in Florida’s courts under Article V, Section 2(a) of the Florida Constitution. In February 2017, the court again exercised its constitutional prerogative over procedural aspects of the state court system and rejected the legislature’s adoption of the Daubert standard, citing “grave constitutional concerns.” In re: Amendments to the Florida Evidence Code. Thus, unless the legislature overturns the court’s decision by a two-thirds vote, Frye will continue to govern in Florida state courts. Continue reading

Are Anti-SLAPP Statutes Toothless in Federal Courts?

cnnAs the Internet increasingly has become the dominant means of conveying both facts and opinions, the number of defamation and other speech-related lawsuits filed in state and federal courts has risen markedly. Responding to what some lawmakers characterize as “strategic lawsuits against public participation” (SLAPP)—suits aimed at suppressing legitimate speech or public debate through imposing the financial burdens of litigation—many states have enacted so-called anti-SLAPP statutes. One characteristic feature of all anti-SLAPP statutes is that they provide an expedited mechanism whereby a defendant can have a qualifying SLAPP suit dismissed quickly. Continue reading

Fifth Circuit Rejects Rigid Interpretation of Removal Statute in Asbestos-Liability Case

5thCirWhen attempting to remove civil lawsuits from state to federal court, business defendants often must contend with not one, but two opponents. One opponent, of course, is the plaintiff, who prefers the home cooking of a local judge and jury. The second opponent is the federal district court judge, who may be loath to inflate the size of his docket. The US Court of Appeals for the Fifth Circuit late last month reversed one district court judge’s crabbed interpretation of a removal statute which consigned an asbestos-liability defendant to the notoriously pro-plaintiff Louisiana state courts. Continue reading

With Ninth Circuit Exacerbating Judicial Discord on “Ascertainability,” Time For SCOTUS to Resolve Split

sellingerdvannostrandaGuest Commentary

By David E. Sellinger and Aaron Van Nostrand, Greenberg Traurig LLP

In a closely watched appeal, the US Court of Appeals for the Ninth Circuit has squarely weighed in on the “ascertainability” of class members in a class-action lawsuit. The three-judge panel further widened a rift among federal courts of appeal on the issue, holding that plaintiffs need not demonstrate an administratively feasible way to identify class members at the class-certification stage.

In an August, 2016 WLF Legal Backgrounder, we predicted that a trio of class actions then-pending in the Ninth Circuit could prompt the US Supreme Court to resolve the circuit split on the ascertainability issue. Although that issue was briefed in all three cases, it was not decided in Brazil v. Dole Packaged Foods, LLC (No. 14-17480), and a hold placed on Jones v. ConAgra Foods, Inc. (No. 14-16327) pending a Supreme Court decision in Microsoft v. Baker is still in effect. The Ninth Circuit did address ascertainability in the third case discussed in that Legal BackgrounderBriseno v. ConAgra Foods, Inc. The January 3 decision presents a view sharply in contrast with that of certain other circuits, most notably the Third Circuit. Continue reading

The Government Should Stop Using ‘Operation Choke Point’ to Bully Banks into Cutting Ties with Legitimate Businesses

imagezOn the eve of the inauguration, many industries and businesses await the changes a new administration will bring.  In particular, payday lenders are hoping that they will once again be able to enjoy unrestricted banking access, as for the past several years their banking relationships have slowly been severed as a result of a government initiative known as “Operation Choke Point.”

Operation Choke Point began—without any Congressional approval or even knowledge—as a product of President Obama’s 2009 executive order to eliminate fraudulent and illegal businesses.  Not surprisingly, however, the initiative quickly expanded.  By 2013, the Department of Justice (DOJ) had started quietly launching the now-infamous federal initiative unconstitutionally cutting off countless legitimate businesses from banking services. Continue reading