*Note: This is the first in a planned series of posts compiling Washington Legal Foundation papers, briefs, regulatory comments, and blog commentaries relevant to critical legal and constitutional issues facing new senior leaders at specific federal regulatory agencies.
For the past eight years, employers have faced a dizzying array of new employment and workplace-safety regulations, guidance documents, and enforcement policies from the Department of Labor (DOL), the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB). Some of those new rules and directives departed dramatically from decades-old agency policies and practices.
Through its public-interest litigating, publishing, and communications capabilities, WLF influenced debates over those agencies’ policies and actions with timely papers and blog commentaries, and weighed in directly through regulatory comments and amicus briefs. Those activities have resulted in an impressive body of reference materials that are instructive for new leadership in those agencies. We provide a summary of and links to those documents below to simplify access to relevant work product from WLF in each of those areas. 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, with Jody Boudreault, a Senior Associate with the firm.
In a departure from well-settled case law, the US Court of Appeals for the Ninth Circuit recently handed down a decision that may undermine the longstanding Illinois Brick doctrine. The policy implications of the decision bear further watching, as courts grapple with the rationale underlying the doctrine in an ever-evolving technological landscape.
The Illinois Brick doctrine has long been a tool to limit attenuated antitrust lawsuits, and ensure that those directly harmed by an antitrust violation are the ones who can recover damages caused by the violation. Simply put, the doctrine—so-called because it flows from the Supreme Court’s holding in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977)—holds that the only parties who may recover damages for an antitrust violation are those who purchased directly from the offending firm. Indirect purchasers—i.e., the customers of the direct purchasers—are barred from recovery. Continue reading
Jay B. Stephens, Of Counsel, Kirkland & Ellis LLP and Chairman, WLF Legal Policy Advisory Board
The US Supreme Court is one of America’s most selective governmental entities. Over the past century, Congress removed most direct-appeal rights to the Court, leaving the vast majority of litigants in a position of having to seek the votes of four justices through the discretionary certiorari process. With the Court currently accepting only between 70 and 80 cases per term, the odds of a grant of certiorari for cases where an attorney submits the petition are now between 4% and 6%.
One factor that most appellate advocates believe increases the odds of the Court granting certiorari is the filing of high-quality, influential amicus curiae (“friend of the court”) briefs urging the justices to vote for review. Over the past 40 years, Washington Legal Foundation has established itself as an extremely effective cert-stage advocate in cases that affect the free-enterprise system and economic liberties. A recently published analysis of lawyers’ and organizations’ success at the Supreme Court’s cert stage—both as Counsel of Record for a review-seeking party and as amicus—demonstrates that effectiveness. Continue reading
By David E. Sellinger and Aaron Van Nostrand, Greenberg Traurig LLP
In a closely watched appeal, the US Court of Appeals for the Ninth Circuit has squarely weighed in on the “ascertainability” of class members in a class-action lawsuit. The three-judge panel further widened a rift among federal courts of appeal on the issue, holding that plaintiffs need not demonstrate an administratively feasible way to identify class members at the class-certification stage.
In an August, 2016 WLF Legal Backgrounder, we predicted that a trio of class actions then-pending in the Ninth Circuit could prompt the US Supreme Court to resolve the circuit split on the ascertainability issue. Although that issue was briefed in all three cases, it was not decided in Brazil v. Dole Packaged Foods, LLC (No. 14-17480), and a hold placed on Jones v. ConAgra Foods, Inc. (No. 14-16327) pending a Supreme Court decision in Microsoft v. Baker is still in effect. The Ninth Circuit did address ascertainability in the third case discussed in that Legal Backgrounder—Briseno v. ConAgra Foods, Inc. The January 3 decision presents a view sharply in contrast with that of certain other circuits, most notably the Third Circuit. Continue reading
Featured Expert Column – Environmental Law and Policy
By Samuel B. Boxerman, Sidley Austin LLP
A new President will be inaugurated today. Based on statements by President-Elect Trump and the views of many in Congress, changes are expected in how the federal government will address climate change, especially in the manner it regulates CO2 emissions.
However, at the same time that elected federal officials may navigate such a new path, a group of plaintiffs in a pending Oregon case urge the judiciary to dictate a far different approach to climate change. Specifically, in Juliana, et al. v. United States, a group of plaintiffs have sued various federal agencies alleging that those agencies have willfully ignored the harm climate change causes them. The plaintiffs claim that such inaction violates their constitutional due process rights, and runs afoul of a common-law theory known as the “public trust” doctrine. They seek an order directing the federal defendants to develop a national remedial plan to reduce CO2 emissions. Continue reading
On the eve of the inauguration, many industries and businesses await the changes a new administration will bring. In particular, payday lenders are hoping that they will once again be able to enjoy unrestricted banking access, as for the past several years their banking relationships have slowly been severed as a result of a government initiative known as “Operation Choke Point.”
Operation Choke Point began—without any Congressional approval or even knowledge—as a product of President Obama’s 2009 executive order to eliminate fraudulent and illegal businesses. Not surprisingly, however, the initiative quickly expanded. By 2013, the Department of Justice (DOJ) had started quietly launching the now-infamous federal initiative unconstitutionally cutting off countless legitimate businesses from banking services. Continue reading
Partially hydrogenated oil
In 2016, class-action lawsuits alleging that a processed food product or its labeling violated state consumer-protection laws continued to clog the federal courts, especially in California. The number of new food-related consumer class actions filed last year nearly equaled the number filed in 2015, according to a report in Food Navigator USA. It’s unclear whether these trends will hold in 2017, but there is one set of blatantly frivolous claims that should disappear this year: those that seek judicial regulation of products that contain partially hydrogenated oil (PHO), the main source of trans fat. A December 13, 2016 Southern District of California decision should frustrate such claims in the short term, and a forthcoming US Court of Appeals for the Ninth Circuit decision in a pending case may (and should) end them permanently. Continue reading