How the SEC Can Be a Better Lifeguard: Commissioner Peirce’s Insightful Comments on Regulators’ Role in a Sea of FinTech Innovation

Alter_Daniel_web2_8784879218361Guest Commentary

By Daniel S. Alter, a Shareholder in the New York office of Murphy & McGonigle P.C. and a former general counsel for the New York State Department of Financial Services.

Earlier this month, Securities and Exchange Commission (SEC) Commissioner Hester M. Peirce addressed a FinTech conference hosted by the Medici Project, which is a serious effort to build a blockchain-based securities exchange.  In her remarks, Peirce discussed two constructive approaches that financial regulators have taken worldwide in response to the tidal shift in technology that supports financial products and services.  The commissioner’s message to conference attendees should encourage all those in both the legal and entrepreneurial communities who, to date, have felt only the punitive response of SEC enforcement actions involving initial coin offerings, or ICOs.  And yet, Peirce’s comments stopped just short of advocating for the sort of regulatory approach that would likely be most effective in grappling with fast-paced FinTech developments. Continue reading “How the SEC Can Be a Better Lifeguard: Commissioner Peirce’s Insightful Comments on Regulators’ Role in a Sea of FinTech Innovation”

Monkey Selfie Update: 9th Circuit Judge Calls for En Banc Rehearing Vote on Ruling

1525792504758-naruto2Two weeks ago, we posted a commentary on the so-called monkey selfie case decided by the U.S. Court of Appeals for the Ninth Circuit, Naruto v. Slater. The court unanimously held that Naruto, a photogenic Indonesian macaque, did not have statutory standing to sue the owner of the selfie-taking camera for copyright infringement. The majority opinion did find that Naruto had Article III standing, a conclusion strongly criticized in a concurring opinion.

Law360 reported yesterday that “an unnamed Ninth Circuit judge had requested sua sponte that the full court vote on whether to rehear the case.” The article speculated that Judge N. Randy Smith, who authored the concurrence in the three-judge-panel opinion, may have made the request. Judge Smith had written that once the court found People for the Ethical Treatment of Animals could not act as a “next friend” to Naruto and prosecute the suit on his behalf, the standing inquiry should have ceased.

A second possibility is that the author of the Slater majority opinion, Judge Carlos Bea, called for the en banc vote. His opinion explicitly called for the Ninth Circuit to reconsider its 2004 decision, Cetacean Cmty. v. Bush, which held that non-humans represented by “competent counsel” can have Article III standing to sue without a “next friend.” The court “wrongly decided” Cetacean, Judge Bea wrote in Slater.

The May 25 Slater docket filing called for new briefs on the rehearing issue, which are due on June 15.

The Supreme Court’s “Epic Systems” Decision: Holdings and Hints on “Chevron” Deference

SapperGuest Commentary

By Arthur G. Sapper, Senior Counsel with Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in its Washington, DC office, where he practices both appellate litigation and administrative law, with an emphasis on OSHA matters.

The U.S. Supreme Court’s decision in Epic Systems Corporation v. Lewis will likely prove important on issues other than the arbitration of labor disputes. An extended passage in the opinion (from page 19 through 21 of the slip opinion) is likely to alter the deference rule of Chevron and perhaps that of Auer as well. (Chevron deference pertains to statutes; Auer deference pertains to regulations.) Continue reading “The Supreme Court’s “Epic Systems” Decision: Holdings and Hints on “Chevron” Deference”

Neither Reason nor Science Supports Class Actions against Diet Soda Makers

 

A Food Court Follies Analysis

No doubt, many a diet soda will be consumed this weekend. Will any of those consumers, though, purchase that soda—in reliance on the manufacturers’ devious use of “diet”—because they think it will assist in weight loss?

diet pepsiThat impression is the basis of a number of copycat consumer class-action lawsuits filed in New York and California by the same lawyers on behalf of soda purchasers against Coca-Cola, PepsiCo, and Dr. Pepper Snapple Group. Four such suits have been dismissed, the most recent being Manuel v. Pepsi-Cola Co. in an pointedly written opinion by U.S. District Court for the Southern District of New York Judge Paul A. Engelmayer. Continue reading “Neither Reason nor Science Supports Class Actions against Diet Soda Makers”

Update: Federal District Court Rejects Minority View on Pharma “Innovator Liability”

pillsIn a recent post, West Virginia’s High Court Rejects Novel Theory of “Innovator Liability”, WLF Senior Litigation Counsel Cory Andrews discussed a state court decision that declined liability on a pharmaceutical manufacturer for alleged harms caused by a drug it did not produce. In doing so, the West Virginia Supreme Court of Appeals parted company with the highest courts of two other states, California and Massachusetts, which earlier this year embraced the minority view that plaintiffs can recover damages from so-called branded pharmaceutical companies for harms allegedly caused by the generic copy of the the brand-name drug.

On May 21, a U.S. District Court for the District of Massachusetts judge overseeing a multidistrict litigation, In re: Zofran (Ondansetron) Products Liability Litigation, followed the majority view of innovator liability and dismissed three claims filed by plaintiffs who had only ingested the generic version of Zofran. Continue reading “Update: Federal District Court Rejects Minority View on Pharma “Innovator Liability””

California Supreme Court Limits Employers’ Ability to Characterize Workers as Independent Contractors

JohnQuieroLE - resized [45] 170504_0034_1a_square2Guest Commentary

By John F. Querio, a Partner, and Lacey L. Estudillo, an Appellate Fellow, with Horvitz & Levy LLP.

California courts and administrative agencies have long used a multi-factor common-law test, as summarized by S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989), to determine whether workers are independent contractors or employees under California law.  The employee-independent contractor distinction is important because employee status brings with it a host of burdensome wage and hour and other legal obligations with which the employer must comply, multiplying costs exponentially.

The key factor under the Borello common-law test for determining employment status has traditionally been the right to control the manner and means by which the work is to be performed.  Despite decades of settled jurisprudence on this issue, in Dynamex Operations West, Inc. v. Superior Court, No. S222732, 2018 WL 1999120 (Cal. Apr. 30, 2018), the California Supreme Court adopted a new test for determining independent-contractor status for purposes of wage and hour obligations under California law. Continue reading “California Supreme Court Limits Employers’ Ability to Characterize Workers as Independent Contractors”

West Virginia’s High Court Rejects Novel Theory of “Innovator Liability”

west vaShould the law recognize a plaintiff’s tort claims against a branded drug manufacturer when the drug that allegedly caused the plaintiff’s injuries was manufactured and sold by the defendant’s generic competitor? State and federal courts have been grappling with this novel question of “innovator liability” ever since the U.S. Supreme Court held, in Pliva and Bartlett, that such tort claims against generic manufacturers are preempted under federal law.

At bottom, innovator liability seeks to hold innovator drug manufacturers liable for injuries resulting from products they neither manufactured nor sold. Such “deep pocket jurisprudence,” as a recent Washington Legal Foundation paper by Shook Hardy & Bacon’s Victor Schwartz explains, marks a radical departure from long-settled principles of product liability premised on a naked policy decision that shifts financial responsibility onto a third party with the deepest pockets. Continue reading “West Virginia’s High Court Rejects Novel Theory of “Innovator Liability””