Washington State Officials Usurp Federal Authority with Crusade to Block Export Terminal

Over the past several years, state and local governments have become more aggressive regulators of free-enterprise activity. Some of those states and municipalities have taken action in areas that either federal law or the U.S. Constitution reserve for uniform federal regulation.

For instance, states like Washington and California have either adopted or are pursuing their own “net neutrality” rules after the Federal Communications Commission repealed a 2015 rule. Scores of states, cities, and counties have sued to impose controls on federally approved prescription pain medications that would be different from those required by the Food and Drug Administration. And mayors, county supervisors, and state attorneys general are racing ahead of the federal government with lawsuits aimed at regulating the global concern of climate change.

Another example of what we’ll call extreme federalism has been percolating in the Pacific Northwest for over five years and is now being contested in federal court. Continue reading “Washington State Officials Usurp Federal Authority with Crusade to Block Export Terminal”

Another California Intrusion on Businesses’ Free Speech Fails in Court

FirstAmendmentFor a state with cities like Berkeley, which birthed the Free Speech Movement 54 years ago, California’s record on respecting the First Amendment is surprisingly spotty. That is especially true for the expressive activities of businesses. The state, as well as its municipalities, often curtail businesses’ speech, or compel them to speak, as a way to demonstrate government is “doing something” to solve complex social or public-health problems.

Occasionally, but not nearly often enough, courts reintroduce California’s censors to the First Amendment, as the U.S. Court of Appeals for the Ninth Circuit did last year in striking down San Francisco’s warning-label mandate for “sugary” drinks. On February 20, a Northern District of California judge handed the state its latest speech-regulation defeat, striking down a law designed to limit information that entertainment database company IMDb.com could publish (IMDb.com Inc. v. Becerra). Continue reading “Another California Intrusion on Businesses’ Free Speech Fails in Court”

Labor Issues in the Gig Economy: Federal Court Concludes That GrubHub Delivery Drivers are Independent Contractors under California Law

Forman_A_Main-large-headshot-photo-15242Sullivan_K_Main-large-headshot-photo-12239Guest Commentary

By Adam S. Forman, a Member in the Detroit, MI and Chicago, IL offices of Epstein Becker & Green, P.C., and Kevin D. Sullivan, an Associate in the firm’s Los Angeles, CA office.

Ed. Note: Cross-posted with permission from the Wage and Hour Defense Blog. Epstein Becker Members Nathaniel Glasser and Stuart Gerson authored a Washington Legal Foundation Legal Backgrounder in 2017 on this topic, ISO: Uniform, Transparent Regulatory Standard to Distinguish Independent Contractors from “Employees.”

Recently, a number of proposed class and collective action lawsuits have been filed on behalf of so-called “gig economy” workers, alleging that such workers have been misclassified as independent contractors. How these workers are classified is critical not only for workers seeking wage, injury and discrimination protections only available to employees, but also to employers desiring to avoid legal risks and costs conferred by employee status.  While a number of cases have been tried regarding other types of independent contractor arrangements (e.g., taxi drivers, insurance agents, etc.), few, if any, of these types of cases have made it through a trial on the merits—until now. Continue reading “Labor Issues in the Gig Economy: Federal Court Concludes That GrubHub Delivery Drivers are Independent Contractors under California Law”

New Slate of Commissioners Should Elevate FTC’s Consideration of the First Amendment

FTC_Man_Controlling_TradeThe U.S. Senate Committee on Commerce, Science, and Transportation has scheduled a hearing for tomorrow, February 14, 2018, on the nominations of a new Chairman and three new Commissioners to the Federal Trade Commission (FTC). In recent years, FTC has become the primary national regulator of consumer data privacy and security, a responsibility that accords the Commission a staggering amount of influence over an American economy increasingly fueled by information.

When utilizing that authority over how businesses treat consumer data, the Commission has accorded little or no regard to the First Amendment. Data is speech, a reality that the incoming Chairman and Commissioners must incorporate into consumer-protection enforcement under § 5 of the Federal Trade Commission Act. Continue reading “New Slate of Commissioners Should Elevate FTC’s Consideration of the First Amendment”

When Assessing Burdens for Farmers, Other Landowners, White House Shouldn’t Duck Overhaul of Wetlands Regulatory Juggernaut

Lawrence KoganGuest Commentary

By Lawrence A. Kogan*

Last year, two WLF Legal Pulse posts (here and here) explored the federal government’s incremental expansion of control over privately owned agricultural property through the Clean Water Act (CWA) and the law’s hydra-like oversight of wetlands. Those commentaries presented one Erie, Pennsylvania farmer’s 30-year legal battle as a microcosm of how agenda-driven regulators can upset the balance between environmental protection and individual rights. Ironically, that balance empowers small and family-farmers’ contribution to another goal of green activists: sustainable local food production.

New information discovered from the legal battle against farmer Robert Brace reveals that his plight has been part of a broader, decades-long crusade led by a select group of environmental officials, with the active support of special-interest activists, to expand wetlands and challenge decisions by agriculture regulators. That campaign, and its success over the course of numerous presidential administrations, should not go unnoticed as the current regulatory reform effort, especially as it relates to “waters of the U.S.” (WOTUS), moves forward. Continue reading “When Assessing Burdens for Farmers, Other Landowners, White House Shouldn’t Duck Overhaul of Wetlands Regulatory Juggernaut”

DOJ Memo and Court Opinion Show Trend in Damming Flood of False Claims Act Suits

11th CircuitBusinesses that routinely contract with the government know that while the relationship comes with high financial rewards, it also can expose those companies to massive civil liability.  Under the False Claims Act (FCA), government contractors can find themselves sued for hundreds of millions of dollars based on mere technical violations of complex regulatory schemes.

Luckily, as highlighted in several of our previous posts, the U.S. Supreme Court has recently reinforced the high evidentiary threshold FCA plaintiffs need to meet to bring a successful claim under the most common theory of FCA liability.  A recently disclosed U.S. Department of Justice (DOJ) memo and a recent opinion from the U.S. Court of Appeals for the Eleventh Circuit might similarly lead to fewer baseless claims against government contractors. Continue reading “DOJ Memo and Court Opinion Show Trend in Damming Flood of False Claims Act Suits”

WLF Briefing Delves into 2018 Legal, Regulatory Challenges for “Internet of Things” Technology

This interactive discussion was moderated by H. Michael O’Brien of Wilson Elser and featured Julie Kearney of the Consumer Technology Association, James Trilling of the Federal Trade Commission, and Courtney Stevens Young of Medmarc Insurance Group.