Federal Courts, State Governments Push Back Against Corrosive Disabilities Act Suits

sharkCongress passed the Americans with Disabilities Act (ADA) in 1990 to provide important protections for some of the most vulnerable Americans.  Like other federal anti-discrimination laws, the ADA included a private right of action.  And as has happened with many other laws that can be privately enforced, the ADA has seen its share of questionable lawsuits during its nearly three-decade history.

In recent years, the trickle of lawsuits has grown into a flood, with scores of actions alleging what are at best novel interpretations of the law and at worst blatantly baseless “drive-by” claims that seek a quick buck.  Thankfully, courts are increasingly skeptical of plaintiffs’ lawyers’ attempts to broaden the ADA, and elected officials in some states are pushing back against legal shakedowns of small businesses. Continue reading “Federal Courts, State Governments Push Back Against Corrosive Disabilities Act Suits”

Ninth Circuit Overturns State Licensing Scheme Forcing Businesses to Incorporate in California

9thCirAccording to one California observer, the “list of businesses abandoning California for more hospitable business environments reads like a roll call of top companies.” That corporations have been fleeing California’s escalating costs and over-the-top regulation is not all that surprising. But few may be aware of one of the Golden State’s more creative efforts to reverse that trend: enacting laws that force companies to incorporate in California if they want to do business there.

The U.S. Court of Appeals for the Ninth Circuit recently took up—and overturned—one such law in Nationwide Biweekly Admin. v. Owen. The case arose from Nationwide’s biweekly mortgage loan repayment program, which facilitates homeowners with mortgages who wish to make 13 monthly mortgage payments a year, ostensibly reducing a 30-year mortgage into a 23.9-year mortgage.  Continue reading “Ninth Circuit Overturns State Licensing Scheme Forcing Businesses to Incorporate in California”

Eighth Circuit Finds Standing, but Ultimately Rejects Claims, in Data-Breach Suit

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Featured Expert Contributor—Civil Justice/Class Actions

Frank Cruz-Alvarez, Shook, Hardy & Bacon L.L.P., with Rachel Forman, Shook, Hardy & Bacon L.L.P.

On August 21, 2017, the U.S. Court of Appeals for the Eighth Circuit, in Kuhns v. Scottrade, Inc., 868 F.3d 711 (8th Cir. 2017), affirmed the district court’s dismissal of a consolidated class action complaint.  The Eighth Circuit disagreed with the district court and held that the plaintiff had Article III standing for the contract-related claims, but nonetheless affirmed the dismissal of the complaint because it failed to state a claim upon which relief could be granted. Continue reading “Eighth Circuit Finds Standing, but Ultimately Rejects Claims, in Data-Breach Suit”

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”

Is D.C. Circuit’s Data-Breach Standing Decision a Tipping Point for High Court Review?

cohen-david-tGuest Commentary by David T. Cohen, Counsel at Ropes & Gray LLP in its New York, NY office.

Article III of the U.S. Constitution requires all private litigants in federal court to establish “standing,” that is, to show that they are proper litigants to raise the defendant’s alleged legal violations with the court. To have standing, a plaintiff must face an actual or sufficiently imminent future injury from the legal violation.  Several recent federal appellate decisions have grappled with the issue of when, if ever, a plaintiff whose personal information was compromised in a data breach—but who has suffered no actual harm from that compromise—faces a sufficiently imminent future harm to have Article III standing.

One such recent case stands out from the pack, both because it hails from the particularly prominent U.S. Court of Appeals for the D.C. Circuit, and because it is the subject of a forthcoming petition for a writ of certiorari, setting the stage for what could become the first-ever ruling by the U.S. Supreme Court on the issue in a data breach matter. Continue reading “Is D.C. Circuit’s Data-Breach Standing Decision a Tipping Point for High Court Review?”

FTC’s Action against “Repetitive” Filing of Citizen Petitions Reflects Expanding Pharma-Sector Enforcement Program

Featured Expert Column: Antitrust & Competition Policy — Federal Trade Commission

06633 - Royall, M. Sean ( Dallas )By M. Sean Royall, a Partner with Gibson, Dunn & Crutcher LLP, with Richard H. Cunningham, Of Counsel in the firm’s Denver, CO office, and Andrew B. Blumberg, an Associate Attorney in the firm’s Dallas, TX office.

On February 7th, 2017, the Federal Trade Commission (FTC) filed a complaint alleging that Shire ViroPharma Inc. (Shire) violated the antitrust laws by filing sham citizen petitions in an effort to forestall generic competition for its branded prescription drug, Vancocin.  The case is another stepping stone in the agency’s steadily expanding efforts to police what it views as potential antitrust abuses in the pharmaceutical sector. Continue reading “FTC’s Action against “Repetitive” Filing of Citizen Petitions Reflects Expanding Pharma-Sector Enforcement Program”

SCOTUS Seeks Solicitor General’s Views on Apple’s Cert. Petition in Antitrust Suit

app storeIn an orders list issued today, the U.S Supreme Court invited the Solicitor General of the United States to file a brief expressing the federal government’s views on the petition for certiorari in Apple, Inc. v. Pepper. The case, in which Washington Legal Foundation filed an amicus brief supporting Apple’s request for review, involves a forty-year old Supreme Court doctrine dictating that only direct purchasers of good or services may file private enforcement actions under federal antitrust laws.

The Court occasionally seeks the federal government’s views on a petition for certiorari in cases in which the government is not directly involved, but that implicate significant federal interests. In Supreme Court-speak, this is known as a CVSG: Calling for the Views of the Solicitor General. Continue reading “SCOTUS Seeks Solicitor General’s Views on Apple’s Cert. Petition in Antitrust Suit”