Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City

Big AppleBy Holton Westbrook, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering his third year at Texas Tech University School of Law in the fall.

New York City recently suffered the latest loss in municipalities’ legal fight against climate change when the U.S. District Court for the Southern District of New York threw out the city’s attempt to hold BP, Chevron, ExxonMobil, and other oil companies liable for injuries allegedly caused by carbon emissions. The Big Apple has signaled its intention to appeal its loss to the U.S. Court of Appeals for the Second Circuit, but the trial court’s reasoning is well within the mainstream of judicial thinking on the issues at stake, and its ruling should be upheld. Continue reading “Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City”

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””

U.S. Supreme Court to Settle Circuit Split on “Bare Metal Rule” Frequently Invoked in Asbestos Suits

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

On May 14, 2018 the United States Supreme Court agreed to decide a recurring issue in asbestos actions, the “bare-metal” rule.  The Supreme Court granted the petition for writ of certiorari of four businesses that often face products-liability claims in asbestos actions, CBS Corporation, Air & Liquid Systems Corp., Foster Wheeler LLP and Ingersoll Rand, Inc.  The issue, as framed in the petition, is whether products-liability defendants can be liable “under maritime law for injuries caused by products that they did not make, sell, or distribute.” Continue reading “U.S. Supreme Court to Settle Circuit Split on “Bare Metal Rule” Frequently Invoked in Asbestos Suits”

Bigger than a Bread Box? Defendants’ Shelf of Equipment Isn’t Enough for Patent Venue

bread boxFor years, patent owners, especially those that have never “performed” the patent, used the U.S. Court of Appeals for the Federal Circuit’s broad interpretation of the patent venue statute to force infringement lawsuits into favorable jurisdictions.  The U.S. District Court for the Eastern District of Texas was the model; often referred to as the “patent district,” patent holders most frequently—and non-practicing entities (aka “patent trolls”) overwhelmingly—filed suit in the Eastern District of Texas, regardless of where the allegedly infringing party conducted business.  Patent trolls leaned on sympathetic (and self-interested) judges to bully easy settlements out of defendants and force end consumers to pay more for all sorts of products. Continue reading “Bigger than a Bread Box? Defendants’ Shelf of Equipment Isn’t Enough for Patent Venue”

Supreme Court Continues to Nibble Away at Alien Tort Statute’s Sweep

supreme courtYesterday’s decision in Jesner v. Arab Bank, PLC, the U.S. Supreme Court’s third major decision involving the Alien Tort Statute (ATS), continues a trend of reining in human rights activists’ efforts to police private businesses’ overseas conduct through ATS litigation.  The Court held that foreign corporations may not be sued under the ATS for their overseas conduct.  But as with past Supreme Court ATS decisions, the justices once again failed to shut the door entirely on human rights activists: the ruling said nothing about the many ATS claims pending against American corporations.  It thereby ensured that U.S. companies will continue to face such claims for the foreseeable future.

While Jesner suggests that five justices likely would rule that the federal courts should not recognize an ATS cause of action against American corporations for their overseas activities, several federal appeals courts have exhibited little willingness to limit the scope of ATS liability unless directly ordered to do so by the Supreme Court. Continue reading “Supreme Court Continues to Nibble Away at Alien Tort Statute’s Sweep”

Cleaning Up the Asbestos Litigation Mess: A Role for DOJ?

DOJAsbestos—the heat-resistant, naturally occurring silicate mineral—disappeared from the manufacturing marketplace over 40 years ago. In those four decades, litigation involving asbestos has been as impervious to resolution as the mineral itself is to high temperatures. When we’ve asked mass-tort litigators “what’s the next asbestos?” some have answered—not entirely in jest—”asbestos.”

The reasons for asbestos litigation’s endurance are many, but defendants, judges, and public officials have started to spotlight the role of bankruptcy trusts and plaintiffs’ lawyers’ use of them as both shield and sword. Numerous voices, including state attorneys general and Members of Congress, have called on the U.S. Department of Justice (DOJ) to investigate misconduct and potential fraud. DOJ has a number of potent oversight and enforcement options at its disposal, some of which are discussed below. Continue reading “Cleaning Up the Asbestos Litigation Mess: A Role for DOJ?”

Show Me the Slack Fill: State’s Overly Pliable Consumer-Fraud Law Courts Dubious Litigation

raisnetsFood Court Follies—A WLF Legal Pulse Series

Litigation involving processed foods and other packaged goods has become so popular that cases are now routinely filed not only over what’s in the package, but also over what’s not in the package. Lawsuits over empty space, colloquially known as “slack-fill,” enrich plaintiffs’ lawyers while according little or no benefit to consumers. These lawyers have flocked to courts that have broadly interpreted already flexible consumer-protection laws. Targeted businesses have started to express their concerns, and elected officials are beginning to listen.

One state where reform is afoot is Missouri. A very recent federal court decision there in a slack-fill suit reflects why that state’s law is under reconsideration. Continue reading “Show Me the Slack Fill: State’s Overly Pliable Consumer-Fraud Law Courts Dubious Litigation”