October Term 2015 Administrative-Law Rulings Heighten Significance of Next Supreme Court Appointment

 

New Faulk photoFeatured Expert Column − Toxic Tort and Environmental Litigation

Richard O. Faulk, Esq., a Partner with Alexander Dubose Jefferson & Townsend LLP serving clients in Texas and Washington DC.

Since the United States Supreme Court’s Skidmore v. Swift & Co., and Bowles v. Seminole Rock & Sand Co. rulings, the role of judicial deference in administrative law has expanded exponentially.  For example, agencies now receive deference, under the Court’s Auer v. Robins decision, even if their own drafting creates the very vagaries and ambiguities that require interpretation.  Courts also defer to agencies’ interpretations of statutes they are charged to administer (Chevron U.S.A. Inc. v. NRDC) and to scientific conclusions reached in the course of the regulatory process (Baltimore Gas & Electric Co. v. NRDC).  By indulging these perspectives, the courts necessarily surrender their constitutional authority to “say what the law is,”1 and contribute to an arrogation of administrative power that threatens not only our constitutional separation of powers, but also their balance.2

Regulatory agencies have grown into what some call a “fourth branch” of our federal government.3 The threat posed by this de facto branch, also known as the “Administrative State”4 or, more colorfully, our “Junior Varsity Congress,”5 has attracted the growing attention of a number of Supreme Court justices.  Continue reading

Supreme Court Observations: Halo Electronics v. Pulse Electronics

Kaminski_Jeffri_LRFeatured Expert Contributor – Intellectual Property (Patents)

Jeffri A. Kaminski, Venable LLP

The U.S. Supreme Court’s recent Halo Electronics, Inc v. Pulse Electronics, Inc. decision changes the standard for awarding enhanced damages in patent litigation. The ruling reversed a 2015 U.S. Court of Appeals for the Federal Circuit decision that maintained that court’s longstanding approach to awarding enhanced damages.

In Halo, the Court altered the law on enhanced damages in three ways: 1) it eliminated the requirement to show objective recklessness; 2) it lowered the standard of proof from “clear and convincing evidence” to “preponderance of the evidence;” and 3) it adopted an abuse-of-discretion standard for the Federal Circuit’s review of a district court’s decision to grant enhanced damages. Continue reading

Data-Breach Class Actions Feel the Effects of “Spokeo v. Robins”

supreme courtBy Jeryn Crabb, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law

With Spokeo v. Robins the US Supreme Court clarified the requirements necessary for plaintiffs to establish standing in federal court.  Federal district courts are only beginning to explore those parameters, but the early applications are generally encouraging in one key area: data-breach class-action litigation.

In Spokeo, Mr. Robins alleged that Spokeo, a “people search engine,” violated the Fair Credit Reporting Act by inaccurately reporting that he was married, employed, and in good financial standing.  The Court held that a plaintiff bringing suit under a federal law that defines a statutory violation as harm must allege the existence of a concrete and particularized injury in order to have standing to sue. Continue reading

North Carolina Supreme Court Grudgingly Adopts “Daubert” Standard for Expert Evidence Review

Tager_09181Featured Expert Column: Judicial Gatekeeping of Expert Evidence

By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP

Five years ago, the North Carolina General Assembly amended the North Carolina Rules of Evidence to mirror the Federal Rules of Evidence’s approach to expert testimony. In North Carolina v. McGrady, __ S.E.2d __, 2016 WL 3221096 (June 10, 2016), the Supreme Court of North Carolina finally confirmed that, as a result of the General Assembly’s adoption of language that mirrors that of the federal rules, the Daubert standard now governs the admission of expert testimony under state law.

The US Supreme Court first adopted the Daubert standard in 1993, interpreting Federal Rule of Evidence 702 to bestow a “gatekeeping role” on district courts. Shortly after Daubert, the Court elaborated on this standard in General Electric Co. v. Joiner and Kumho Tire Co. v. Carmichael. And in 2000, the Supreme Court adopted amendments to Rule 702 that, while not expressly mentioning Daubert in their text, were clearly intended to formally embed the Daubert standard in the Federal Rules of Evidence. Continue reading

WLF’s Annual End-of-Term Review Assesses Key Supreme Court Free-Enterprise Decisions

The U.S. Supreme Court: October 2015 Term Review

Speakers: The Honorable Jay Stephens, Kirkland & Ellis LLP; Andrew J. Pincus, Mayer Brown LLP; Elizabeth P. Papez, Winston & Strawn LLP; Jeffrey B. Wall, Sullivan & Cromwell LLP

Our speakers discussed Court rulings in the areas of class actions, arbitration, the federal False Claims Act, intellectual property, federal regulation, and property rights.

The Supreme Court’s “Universal Health” Ruling: A Net Win for Federal Government Contractors

supreme courtThe U.S. Supreme Court’s June 16, 2016 decision in a closely watched False Claims Act (FCA) case, Universal Health Services, Inc. v. United States ex rel. Escobar, had a little bit in it for everyone.  It held (as had most of the federal appeals courts) that a contractor can be held liable under the FCA for making a fraudulent claim for payment from the federal government, even if the claim was never expressly made but was merely implied.  On the other hand, Universal Health unanimously vacated a First Circuit ruling that had reinstated the plaintiffs’ claims, concluding that the First Circuit applied an insufficiently rigorous test for determining whether the defendant’s allegedly false claims were “material.”

So which side really “won” the case?  If the correct answer to that question turns on whether the Court’s decision will make it more difficult for private relators to prevail in future FCA cases, then the decision was a win for FCA defendants.  For example, the Court unequivocally rejected assertions—frequently raised by FCA plaintiffs—that an FCA claim is proven any time a contractor submits a claim for payment of a contractual claim despite awareness that it has breached a significant provision of its contract. Continue reading

Post-“Spokeo,” More Suits Should Be Vulnerable to Article III Standing Attacks

supreme courtIn the wake of the U.S. Supreme Court’s decision in Spokeo Inc. v. Robins, defendants in pending cases where the only harm the plaintiff alleged is violation of a federal statute should be filing new motions to dismiss due to lack of Article III standing.  A Video Privacy Protection Act (VPPA) case decided recently by the First Circuit could provide an immediate opportunity to witness the impact of the Spokeo decision.

In Spokeo, the Court reaffirmed that plaintiffs must possess Article III standing to bring suit, and held that such standing required plaintiffs to allege that they were concretely injured by defendants’ actions.  The Court held that the Spokeo plaintiff’s mere allegation that the defendant violated the terms of the Fair Credit Reporting Act (FCRA) was not necessarily enough to provide standing.  Because Congress cannot abrogate standing requirements, even by providing private rights of action, each plaintiff must allege a concrete and particularized harm.  A “bare procedural violation” is not sufficient to confer standing, the Court explained.  Because the Ninth Circuit did not apply the correct standing test, the Court remanded the case for the lower court to determine whether the plaintiff could allege a concrete injury. Continue reading