In an April 28, 2015 post, Will the American Law Institute “Restate” or Try to Rewrite U.S. Copyright Law?, we questioned whether ALI had strayed from its mission of summarizing and clarifying specific areas of common law. Two years later, concerns over ALI’s drift toward lawmaking have grown. Not only has ALI continued to develop a wayward “Restatement of the Law, Copyright,” it is also taking an ambitious, aspirational approach in addressing other critical areas of common law. With its May 22 annual meeting rapidly approaching, now is the time for ALI’s members and the main consumers of its work—judges—to assess how the organization’s recent penchant for rewrites, rather than Restatements, is tainting its brand. Continue reading
Featured Expert Column—Civil Justice/Class Actions
Most litigants are familiar with the federal sanction powers as promulgated under Federal Rules of Civil Procedure 11, 26, 30 and 37, as well as pursuant to 28 U.S.C. § 1927. Each sanction power is codified in the applicable Rule or statute and limited in scope to a particular type of misconduct.1 However, a court’s inherent power to levy sanctions is arguably broader and more amorphous in nature than any of the other sanction powers. As a result, many litigants are unclear about the full extent and application of a court’s inherent power to sanction.
On April 18 in Goodyear Tire & Rubber Co. v. Haeger, the United States Supreme Court provided more clarity on such limitations when it resolved a split of authority among federal appellate courts regarding the breadth of a federal court’s inherent authority to sanction a litigant for bad-faith misconduct. Continue reading
Featured Expert Column—Judicial Gatekeeping of Expert Evidence
In a victory for keeping junk science out of courtrooms, Missouri recently enacted H.B. 153, which adopts the Daubert standard.
H.B. 153 establishes four criteria for an expert witness’s testimony:
(1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) The testimony is based on sufficient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert has reliably applied the principles and methods to the facts of the case.
These criteria mirror Federal Rule of Evidence 702 and the Daubert standard.
Although H.B. 153 applies broadly, it is not universally applicable. It does not apply in certain family and juvenile court proceedings. In addition, H.B. 153 does not permit an expert witness in a criminal case to testify “whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.” Continue reading
Here we go again. Lawsuits over allegedly deceptive food labels have become commonplace—a tried-and-true tactic for some plaintiffs’ attorneys to earn an easy buck. By claiming that the labels were intentionally misleading in some way, these lawyers and the purportedly confused clients they represent, seek to leverage the specter of a class action to force quick settlements. Unfortunately, this tactic often works. In fact, it has worked so well that entire subsets of labeling lawsuits have sprung up, among them “healthy food” labels, “all natural” labels, and slack-fill cases. We can now add a new category to the list: plaintiffs alleging they were deceived because their beer was not brewed where they thought it was.
Plaintiffs Sara Cilloni and Simone Zimmer filed a putative class action, Cilloni v. Craft Brew Alliance, Inc., in the Food Court (also known as the US District Court for the Northern District of California) against Craft Brew Alliance, the owners of Kona Brewing Company (Kona). Kona was founded in 1995 on Hawaii’s Big Island. Taking pride in the company’s origins, Kona stylizes each of its beers in an overtly Hawaiian theme, inviting customers to enjoy the “Liquid Aloha” and “Catch A Wave.” With names like Big Wave Golden Ale, Longboard Island Lager, and Wailua Wheat, Kona’s products celebrate their history and ties to Hawaiian culture. Continue reading
Since the US Supreme Court clarified the due-process limits on the exercise of general or all-purpose jurisdiction in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), plaintiffs have reached for new arguments to support the exercise of general jurisdiction over corporate defendants in forums where the defendants cannot fairly be considered “at home.” With notable exceptions—including the decisions at issue in Bristol-Myers Squibb Co. v. Superior Court of California, Case No. 16-466, and Tyrell v. BNSF Railway Co., Case No. 16-405, both scheduled for argument before the Supreme Court on April 25, 2017—the majority of lower courts have rejected these attempts to evade Daimler and its due-process requirements. The most recent examples of decisions enforcing Daimler come from the high courts of Oregon and Missouri, with the Washington Legal Foundation submitting an amicus brief in the Oregon case. Continue reading
In creating the federal judicial branch, the Framers of the US Constitution did not intend that courts would right every possible wrong. Article III authorizes federal courts to resolve “Cases” and “Controversies.” The US Supreme Court has interpreted that power to mean that civil-litigation plaintiffs must prove they suffered an “injury in fact,” which is concrete and particularized, and not speculative. We’ve discussed Article III standing jurisprudence here in numerous contexts, most frequently in consumer class actions targeting food labels or data-security breaches, areas where the ever-amorphous concept of “economic harm” is often alleged. A March 6, 2017 Seventh Circuit decision, Eike v. Allergan, Inc. et al., shot down an especially outlandish attempt to expand standing based on an alleged economic injury. Continue reading
The Food and Drug Administration (FDA) faces a difficult balancing act in its role as the federal regulator of drug and medical-device manufacturers. On the one hand, it is charged with ensuring that medical products are both safe and effective for their intended uses. On the other hand, it must avoid imposing overly stringent regulations, lest it harm public health by blocking or delaying access to life-saving products, or to truthful information about those products.
Through its public-interest litigating, publishing, and communications capabilities, Washington Legal Foundation has long been at the forefront of efforts to ensure that FDA maintains the proper balance. Those activities have generated an impressive body of material that would be instructive for new FDA leadership to review. We provide a summary of and links to those documents below (limited to WLF’s FDA-related work product in the past several years) to simplify access to that work product. Continue reading