District Courts Divide over Application of “Bristol-Myers Squibb” Decision to Class Actions

troyer_brian_240x470Guest Commentary

By Brian A. Troyer, a Partner with Thompson Hine LLP in its Cleveland, OH office.

In a September 8, 2017 Washington Legal Foundation Legal Backgrounder on Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), I noted that it would remain to be determined how courts would apply it to nationwide and multistate class actions. An Illinois federal court recently became the latest to confront this issue, holding that it lacked jurisdiction over the defendant with respect to claims of nonresident class members, disagreeing with courts in California and Louisiana. The result is a clear split among district courts on the question, and the issue is likely to be brought to the U.S. Supreme Court if courts of appeal also reach opposite conclusions on such a fundamental question. Continue reading “District Courts Divide over Application of “Bristol-Myers Squibb” Decision to Class Actions”

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”

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.

Second Circuit Improperly Ducks Important First Amendment Issues

FirstAmendmentThe U.S. Supreme Court has repeatedly held that federal courts are under a “virtually unflagging” obligation to hear and decide federal claims over which they possess jurisdiction.  Yet, the U.S. Court of Appeals for the Second Circuit has repeatedly refused to decide a First Amendment challenge to a New York statute that restricts merchants’ ability to inform their customers of credit-card surcharges.

Just this past week, the appeals court yet again put off a decision by certifying to the New York Court of Appeals (the state’s highest court) a question on the meaning of the challenged statute.  The federal court’s rationale for its delay does not hold water and betrays a thinly disguised hostility to the First Amendment claims at issue. Continue reading “Second Circuit Improperly Ducks Important First Amendment Issues”

“Oil States” Oral Argument: Many Nuances Probed, Little Light Shed on Outcome

Kaminski_Jeffri_LRFeatured Expert Contributor, Intellectual Property—Patents

Jeffri A. Kaminski, Venable LLP

The November 27, 2017 oral arguments in Oil States Energy v. Greene’s Energy Group shed little light on the ultimate fate of inter partes review proceedings (“IPRs”), in which the Patent and Trademark Office (“PTO”) may invalidate an issued patent. As anticipated, much of the discussion focused on whether patents entail public or private rights, but more telling were the justices’ questions emphasizing due-process concerns. Continue reading ““Oil States” Oral Argument: Many Nuances Probed, Little Light Shed on Outcome”

High Stakes for Patent Holders, Challengers in SCOTUS “Oil States” Case

Kaminski_Jeffri_LRFeatured Expert Contributor, Intellectual Property—Patents

Jeffri A. Kaminski, Venable LLP

The U.S. Supreme Court is set to hear arguments in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, which could strike a devastating blow to extant patent procedure. On November 27, the Court will consider Oil States’ challenge to the constitutionality of the Inter Partes Review (“IPR”) process used by the Patent and Trademark Office (“PTO”) to scrutinize the validity of already-issued patents. While this is not the first constitutional challenge to IPRs, Oil States marks the first time the Supreme Court will confront the issue. Continue reading “High Stakes for Patent Holders, Challengers in SCOTUS “Oil States” Case”

Third Circuit Antitrust Decision Makes Pharmaceutical Patent Disputes Nearly Impossible to Settle

FTC_Man_Controlling_TradeThe U.S. Supreme Court’s 2013 FTC v. Actavis, Inc. decision held that “reverse payment” settlement agreements—in which a drug company suing a generic competitor for patent infringement pays the alleged infringer a substantial amount of cash to settle the litigation—are subject to antitrust scrutiny.  The Court reasoned that such reverse payments are unusual and may indicate that the generic company is really being paid not to compete.

An August 21, 2017 decision from the U.S. Court of Appeals for the Third Circuit has stretched the Actavis holding far beyond anything intended by the Supreme Court.  If the appeals court’s decision in In re: Lipitor Antitrust Litigation is allowed to stand, it may become virtually impossible for drug companies to settle patent-infringement litigation. Continue reading “Third Circuit Antitrust Decision Makes Pharmaceutical Patent Disputes Nearly Impossible to Settle”