Featured Expert Column: Judicial Gatekeeping of Expert Evidence
By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP
Expert testimony is typically thought of as providing an insight into the evidence in the case, or drawing a conclusion from the evidence, that requires knowledge beyond the ken of a typical judge or juror. But expert testimony also can be used as a substitute for evidence that a party cannot, or does not want to, present through traditional evidentiary methods. Although courts have allowed such expert testimony in certain contexts, there is cause for concern when a party offers an expert whose function is to fill a gap in the evidence.
Notable among this category of expert testimony are opinions offered during class-certification proceedings in an effort to show that a case can be efficiently managed on a class-wide basis. Such testimony often takes the form of surveys or other statistical sampling techniques designed to establish liability or damages on a class-wide basis without requiring adjudication of each individual claim. Continue reading
Antitrust & Competition — U.S. Department of Justice
Anthony W. Swisher, a Partner in the Washington, DC office of Squire Patton Boggs (US) LLP.
*Ed. Note: With this post, Mr. Swisher is assuming the role of Featured Expert Contributor on Antitrust & Competition—DOJ. The WLF Legal Pulse welcomes him on board, and we thank his predecessor, Mark J. Botti, for his contributions on DOJ-Antitrust matters during the past two years.
Observers looking for clues as to how federal antitrust enforcement could develop in the next administration took note of a June speech by Senator Elizabeth Warren. Senator Warren laid out some aggressive policy views that would result in a marked shift in antitrust enforcement doctrine if put into place. She decried a so-called “concentration problem” and lamented that “competition is dying.” Senator Warren called for the antitrust enforcement agencies to “hold the line” on horizontal mergers, and was sharply critical of the established agency practice of obtaining divestiture relief, claiming that “too often, [divestitures] don’t work.” Continue reading
This Monday the U.S. Supreme Court will conduct its Long Conference, so named for the larger than usual number of certiorari petitions it considers there. With the fate of so many cert petitions hanging in the balance—and the overwhelming majority of them about to be denied—now is an opportune time to look back at the top 10 cases that were wrongly denied cert in the Court’s last term.
As with the previous installments of my “Not Top 10” list (see here and here), no more than half the cases discussed below will be ones in which Washington Legal Foundation filed a brief in support of certiorari. Also, the cases will once again be limited to those that affect economic liberty, including the need for legal certainty around key legal policies and regulatory regimes. From WLF’s free-enterprise perspective, those cases that implicate competition in the marketplace, limited and accountable government, individual and business civil liberties, or rule of law concerns matter the most. Continue reading
Featured Expert Contributor — Civil Justice/Class Actions
Frank Cruz-Alvarez, a Partner in the Miami, FL office of Shook, Hardy & Bacon L.L.P. with Ravika Rameshwar, an Associate with the firm.
On August 23. 2016, the US District Court for the Eastern District of New York dismissed a class-action suit that alleged the makers of Similac® Advance® Organic Infant Formulas fraudulently misrepresented the products as “organic,” holding that the state claims are preempted by federal law—specifically, the Organic Foods Production Act of 1990. Marentette et. al. v. Abbott Laboratories, Inc., 2016 WL 4444787 (E.D.N.Y Aug. 23, 2016). The court stated that Congress designed the OFPA to create a national standard for organic labeling that would be “disrupted, if not thwarted,” by inconsistent state and federal court decisions. Marentette, 2016 WL 4444787, at *8. Continue reading
Featured Expert Column – Environmental Law and Policy
By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP
In late August, the United States District Court for the Central District of Illinois held that the owner and operator of a coal-fired power plant was liable for violations of the Clean Air Act (CAA) related to particulate matter emissions. See National Resources Defense Council et al. v. Illinois Power Resources, et al. While the decision ultimately reached and decided the merits of the CAA violations largely in Plaintiffs’ favor, the case is also notable for its discussion of whether Plaintiffs—the Natural Resource Defense Council, Respiratory Health Association, and Sierra Club—have standing to sue under the CAA’s citizen-suit provision, 42 U.S.C. § 7604. The court held that they do, and specifically that all that was required to establish injury was an “identifiable trifle.” Defendants in environmental citizen suits will have an increasingly difficult time challenging plaintiffs’ standing if more judges embrace this court’s exceedingly low standard for what constitutes a “case or controversy.” Continue reading
Featured Expert Contributor – Intellectual Property (Patents)
Jeffri A. Kaminski, Venable LLP
The US Supreme Court will hear arguments on three patent cases in the October 2016 Term. Each case addresses a different area of patent law. In Samsung v. Apple (argument October 11), the Court will address the amount of damages awarded for infringement of a design patent. In SCA Hygiene v. First Quality (argument November 1), the Court will decide if the equitable defense of laches is available in patent cases. Lastly the court will tackle the question of liability for infringement when the product is made in a foreign country and only one component of the infringing product is provided from the U.S. to the foreign country in Life Technologies v. Promega (argument date to be determined). Continue reading
Today, September 12, the United States Court of Appeals for the Ninth Circuit will hear oral arguments in two class-action food-labeling cases. The issues before the court are similar and the cases arise from nearly identical facts: the plaintiffs allege that the defendants’ product labels are false or misleading in violation of various state laws because they claim to be “natural.” The appeals will also be heard by the same panel—Judges Fletcher, Christen, and Friedland. In considering these two appeals, the Ninth Circuit will have a chance to set a major precedent that could either reduce the flow of food-labeling suits into California-based federal courts or open the spigot even wider.
The similarities between the two cases, Brazil v. Dole Packaged Foods, LLC and Briseno v. ConAgra, Inc., are striking. The plaintiffs filed putative class actions alleging that the defendants violated various statutory and common-law causes of action by labeling some of their products as “All Natural” or “100% Natural.” Brazil claims that Dole’s use of “All Natural” on several of its juices’ labels is false or misleading because the company added ascorbic acid (vitamin C) and citric acid. Both additives occur naturally in the juice products. Similarly, Briseno claims that ConAgra’s “100% Natural” label is false or misleading because the Wesson Oil in question contains genetically modified organisms (GMOs). Continue reading