‘Merck, Sharpe & Dohme v. Albrecht’: The Supreme Court’s Chance to Re-Open a Preemption Door the Third Circuit Tried to Close Forever

Joe_Hollingsworth_thumbnail 1Featured Expert Contributor, Litigation Strategies

By Joe G. Hollingsworth, Partner, Hollingsworth LLP, with Stephen A. Klein, Partner, Hollingsworth LLP

*Ed. Note: This is Mr. Hollingsworth’s inaugural post as the WLF Legal Pulse’s newest Featured Expert Contributor. He is a nationally renowned courtroom advocate who specializes in trials and appeals and leads a practice group of seventy-five attorneys. 

No one ever said preemption should be easy.  But then there’s the U.S. Court of Appeals for the Third Circuit’s preemption decision last year in Merck, Sharpe & Dohme v. Albrecht, 852 F.3d 268 (3d Cir. 2017).  Continue reading “‘Merck, Sharpe & Dohme v. Albrecht’: The Supreme Court’s Chance to Re-Open a Preemption Door the Third Circuit Tried to Close Forever”

A Haphazard Holding: Montana Supreme Court’s Ruling in Superfund Case Harms Commerce and the Environment

montana s ctBy Amanda Voeller, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Tension between uniform federal regulation and state-level action has become more prevalent recently, and a pending certiorari petition in the U.S. Supreme Court in Christian v. Atlantic Richfield Co., illustrates well this conflict.  In Atlantic Richfield, the Atlantic Richfield Company (ARCO) has asked the U.S. Supreme Court (with the support of a WLF amicus brief) to review and overturn a Montana Supreme Court ruling that creates extreme uncertainty for businesses by allowing state courts to supersede federal environmental regulations. Continue reading “A Haphazard Holding: Montana Supreme Court’s Ruling in Superfund Case Harms Commerce and the Environment”

Commerce-Clause Challenge over Washington Coal-Export Terminal Overcomes First Hurdle

longview-coal-export-site-bv
Port of Longview, WA

In a March commentary, we appraised a legal challenge filed by two companies involved in the mining and delivery of coal against several Washington state officials for their role in blocking approval of a water-port terminal in Longview, Washington. The suit, which has attracted amici curiae briefs from neighboring states and other interested parties, took a step forward on May 30 when Judge Robert J. Bryan denied the defendants’ motion to dismiss. Continue reading “Commerce-Clause Challenge over Washington Coal-Export Terminal Overcomes First Hurdle”

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””

Second Circuit Shuts Down Duplicative Regulation by Litigation of Organic Products

organicA January 9, 2018 WLF Legal Pulse post applauded a federal district court’s textbook application of implied-preemption analysis in dismissing a consumer-protection suit that alleged mislabeling of an organic infant formula. A recent decision of the U.S. Court of Appeals for the Second Circuit in Marentette, et al. v. Abbott Laboratories, Inc. similarly utilized implied preemption to reject a putative class action presenting nearly identical claims involving another brand of organic infant formula. The decision should put an end to plaintiffs’ use of state consumer-protection suits to regulate products bearing the U.S. Department of Agriculture’s (USDA) “Organic” symbol. Continue reading “Second Circuit Shuts Down Duplicative Regulation by Litigation of Organic Products”

Washington State Officials Usurp Federal Authority with Crusade to Block Export Terminal

Over the past several years, state and local governments have become more aggressive regulators of free-enterprise activity. Some of those states and municipalities have taken action in areas that either federal law or the U.S. Constitution reserve for uniform federal regulation.

For instance, states like Washington and California have either adopted or are pursuing their own “net neutrality” rules after the Federal Communications Commission repealed a 2015 rule. Scores of states, cities, and counties have sued to impose controls on federally approved prescription pain medications that would be different from those required by the Food and Drug Administration. And mayors, county supervisors, and state attorneys general are racing ahead of the federal government with lawsuits aimed at regulating the global concern of climate change.

Another example of what we’ll call extreme federalism has been percolating in the Pacific Northwest for over five years and is now being contested in federal court. Continue reading “Washington State Officials Usurp Federal Authority with Crusade to Block Export Terminal”

Update: Despite Previous Judicial Guidance, Misled-by-Maple Class Action Dismissed Again

maple and brown sugarFood Court Follies—A WLF Legal Pulse Series

Last November, a Food Court Follies series post offered two-cheers for a Central District of California judge’s dismissal of consolidated class actions filed against Quaker Oats (In re Quaker Oats Maple & Brown Sugar Instant Oatmeal Litigation). The two cheers were for properly finding that federal law preempted the suit because it would impose novel (i.e. additional) labeling requirements.

We withheld the third cheer in part because the court not only failed to dismiss the suit with prejudice, but it also counseled the plaintiffs on how they could re-plead around his preemption ruling. The plaintiffs filed an amended complaint on November 10, 2017.

The plaintiffs’ changes apparently amounted to “lipstick on a pig,” because on March 8, the court again dismissed the suit, this time with prejudice. Continue reading “Update: Despite Previous Judicial Guidance, Misled-by-Maple Class Action Dismissed Again”