Thanks to America’s regrettably litigious nature, the “Reasonable Person” is always busy. This prototypically average, ordinary human being is routinely called upon in legal disputes governed by common-law tort principles and asked: What would you think or do in this situation? One strain of litigation—consumer-fraud class actions—has kept the Reasonable Person especially occupied in recent years.
A recent court case asked the Reasonable Person to put on her “reasonable consumer” hat and determine the meaning of the term “100% Grated Parmesan Cheese” as it appears on containers of shelf-stable, processed shaky cheese.
In February 2016, inspired by overblown media stories, 15 lawsuits were filed in 6 different courts against 7 defendants (Kraft Heinz Co., Albertsons Cos., Target Corp., Wal-Mart Stores, ICCO-Cheese Co., and Publix Super Markets) alleging common-law and statutory violations for those companies’ false or misleading use of that statement. Continue reading
It’s October 2016, and Milwaukee County, Wisconsin residents are massing on sidewalks, around town landmarks, and in public parks, eyes glued to their smartphones as they chase virtual Pokèmon Go characters.
Meanwhile, in the halls of county government, elected officials mull over the implications of this craze.
Some delight at the game’s ability to bring people together and inspire normally sedentary younger residents to get outside. Others, however, wring their hands over complaints of traffic disruptions and unruly teenagers and scheme over how to quell game-creature hunting, or at least how to make money off of it for the county.
One supervisor, deciding that something needs to be done, devises an ordinance. Rather than target the bad behavior of individuals playing the games, the measure imposes a permitting process and fees on augmented-reality-app developers. After several months of debate, the Board of Supervisors passes Resolution 16-637 by a 13-4 vote on February 2, 2017. Continue reading
On July 28, 2017, Washington Legal Foundation published an interview in which Northwestern University Pritzker School of Law Professor Martin H. Redish answered questions on the evolution of commercial-speech protection. This “Conversations With” paper provides a fitting culmination to the series of WLF publications on commercial speech produced in the last six months.
Over the past 46 years, beginning with a 1971 law review article drafted as a Harvard Law School student, Professor Redish’s scholarship has deeply influenced the US Supreme Court’s development of the so-called commercial-speech doctrine. In the Conversations With paper, he discusses the impetus for that article, as well as the High Court’s growing respect for commercial speech.
The WLF publications were meant to provide policy makers at the state and federal levels with a basic understanding of commercial speech and the First Amendment scrutiny courts apply when reviewing restrictions on such speech. The publications, with links to each, are listed below:
- What Counts as “Commercial Speech” Today? by James M. Beck, Reed Smith LLP
- Better Think Twice before Restricting Commercial Speech, by Thomas R. Julin, Gunster Yoakley & Stuart, PA
- Precautions for Commercial-Speech Regulators, by Bert W. Rein and Megan L. Brown, Wiley Rein LLP
- First Amendment Limits Government’s Power to Compel Commercial Speech, by Jonathan F. Cohn and Paul J. Ray, Sidley Austin LLP
- Commercial-Speech Regulations Must Be No More Extensive than Necessary, by Sarah Roller and Katie Bond, Kelley Drye & Warren LLP
- Conversations With … The Intellectual Godfather of Commercial Speech Protection, featuring Professor Martin H. Redish and Jay B. Stephens, Chairman of WLF’s Legal Policy Advisory Board
By Stephanie J. Peet, a Partner in the Philadelphia, PA office of Jackson Lewis P.C., and Timothy M. McCarthy, an Associate with the firm. Ms. Peet writes for the firm’s Pay Equity Advisory Blog.
The number of jurisdictions considering and enacting legislation that bars employer inquiries about and reliance on job applicants’ salary or wage history has been growing. A legal challenge to the Philadelphia’s ban promises to be instructive and is worth watching.
The Philadelphia Ordinance
On December 8, 2016, the Philadelphia City Council passed a bill prohibiting employers from inquiring about the wage history of prospective employees (the “Ordinance”). The Ordinance, intended to alleviate “gender-based pay discrimination,” was scheduled to take effect on May 23, 2017. In April, however, the Chamber of Commerce for Greater Philadelphia filed a complaint and motion for a preliminary injunction against the City of Philadelphia and the Philadelphia Commission on Human Relations, ultimately seeking to have the law struck down. The City voluntarily halted enforcement of the Ordinance while the lawsuit is pending. Continue reading
Business entities have endured increasingly strident criticism of their free speech rights in recent years. Thankfully, the US Supreme Court and most lower federal courts have declined to embrace critics’ ideologically-driven perspective that the First Amendment does not protect corporate speech. Such judicial respect for a business’s speech rights was recently on display in an unusual setting: a contract dispute between Sirius XM Radio and an advertiser. The court decision arising from that dispute, InfoStream Group v. Sirius XM Radio Inc., both demonstrates how the First Amendment can provide an effective defense and underscores the principle that not all speech by commercial enterprises is “commercial speech.” Continue reading
By Arielle Roth, The Hudson Institute*
It came as no surprise last week when the US Court of Appeals for the DC Circuit denied the request for en banc rehearing in US Telecom v. FCC, better known as the “net neutrality” case. As a technical matter, the panel decision upheld the Federal Communication Commission’s 2015 Title II order, which reclassified broadband Internet as a “telecommunications service” and in turn subjected broadband providers to common carriage regulation. Such a grant would have been rare in any event. Further, in the view of Judge Sri Srinivasan’s opinion concurring in the denial of rehearing, the issues were unfit for judicial review in light of the announcement by current FCC Chairman Ajit Pai of a rulemaking to reverse the previous FCC’s order.
On the contrary, it is precisely because the current FCC seeks to undo the rules in question that the DC Circuit ought to have granted en banc rehearing. Continue reading
Promulgated in April 2016, the Department of Labor’s (DOL) highly controversial Fiduciary Rule drastically expands the universe of retirement investment advisors and employees who are deemed to be “fiduciaries” under federal law. Abandoning 40 years of settled statutory interpretation of the Employee Retirement Income Security Act of 1974 (ERISA) and parallel provisions of the Internal Revenue Code (IRC), DOL now maintains that a fiduciary is anyone who provides “recommendations” that are individualized or directed to a specific recipient for consideration in making investment or management decisions with respect to securities or other property of an ERISA plan or an IRA. Continue reading