- EPA elbows its way into New York rule-writing for natural gas fracking (Washington Post)
- “Big, Bold & Bizarre”: New scholarship from the “FCPA Professor” on corruption law (White Collar Crime Professor)
- Convoluted, contradictory, and confusing Third Circuit class action ruling headed to Supreme Court? (Class Action Countermeasures)
- Post channels Carnack, predicts leading mass tort developments of 2012 (Consumer Class Actions and Mass Torts)
- Constitution’s protection of copyrights and free speech: contradictory? (Copyhype)
- Insurance company litigation chief counsel takes defense lawyers to task for failing to challenge constitutionality of class action device (Above the Law via Overlawyered)
- Some complain there are too many patents. One possible reason: 26,000 registered patent practitioners in U.S. (Patently-O)\
- Assessing calls for government action against new Google “Search + your world” (Truth on the Market)
Posted in Civil Justice & Litigation, Criminalization of Free Enterprise, Environmental Law & Regulation, Preserving Innovation/Intellectual Property | Leave a Comment »
Already ranked 47th among state economies in the nation, California apparently has decided to aim even lower. Following the California Assembly’s enactment of the California Global Warming Solutions Act, California’s Air Resources Board promulgated a new low-carbon fuel standard that would force out-of-state oil refiners and ethanol producers to purchase greenhouse credits from the state in order to legally import oil and ethanol into California. There’s just one problem—that violates the Commerce Clause of the U.S. Constitution, which gives Congress the exclusive authority to regulate interstate commerce.
We’ve previously discussed the dormant implications of the Commerce Clause here. The Supreme Court has repeatedly held that “a state statute that directly regulates or discriminates against interstate commerce” is “virtually per se invalid.”
In formulating California’s low-carbon rules, the state’s Air Resources Board calculated a “carbon intensity” score for different types of fuel. Among other things, the regulatory scheme assigned imported fuels a higher carbon intensity score than in-state fuels. California attempted to justify the disparity on the grounds that importers burn fuel and emit carbon when they transport fuels into the state.
A group of refiners and ethanol producers filed suit, arguing that the standards would not only hurt consumers, but would violate the Commerce Clause by discriminating against the use of renewable fuels from the Midwest and crude oil from Canada.
U.S. District Judge Lawrence O’Neill in Fresno, California agreed, and granted the plaintiffs’ request for a preliminary injunction against the regulation, which unquestionably discriminates against out-of-state producers and impermissibly attempts to regulate commercial activities outside California.
It’s bad enough that California has made a mess of its own economy, with Californians paying some of the highest fuel prices in the nation. But California should not be allowed to unilaterally raise the cost of manufacturing gasoline and diesel fuel across the entire United States.
Posted in Environmental Law & Regulation | Leave a Comment »
Back on the First Monday in October 2011, we noted two First Amendment-related cert petitions that were pending with the Supreme Court. The Court denied review to the first, State Farm v. Bedell, in late November. It denied review in the second case, Natso v. 3 Girls Enterprises, today. The denial leaves untouched a troubling U.S. Court of Appeals for the Tenth Circuit ruling that is at odds with decisions on the identical issue from several other circuit courts.
The Natso appeal arose out of a class action suit arguing that auto fuel purchasers who live in warmer climates are being defrauded because the way retailers calculate the weight of the gas (which is the basis for the fuel price) means colder weather climate consumers pay less at the pump. The plaintiffs demanded 30+ years of documents from the defendants, including internal company and trade group documents which revealed political and legislative strategies on the issue of gas weight. The Tenth Circuit applied a review standard which was highly deferential to the trial court’s enforcement of the discovery request, an outcome which Natso argued intruded on its First Amendment associational and speech rights.
The cert petition had the support of an amicus brief signed by numerous trade groups including the National Association of Manufacturers and the American Chemistry Council. The brief aptly summarized the implications of the Tenth Circuit’s ruling:
Certainly, members want and expect that all communications between the members and their association will not be publicly disclosed simply because a plaintiff sues one of the members and then engages in a discovery fishing expedition seeking the association’s private, internal communications. Given that the memberships of amici range in size from 300 to more than 300,000, these are significant concerns for the amici and their members.
Posted in Civil Justice & Litigation, U.S. Supreme Court | Tagged litigation industry, speech, Supreme Court | Leave a Comment »
Honda Civic Hybrid owners everywhere feel they’ve been cheated. Or at least that’s what their class action lawyers have said. Numerous lawsuits have been filed in the past several years alleging that Honda misled consumers in advertisements on the amount of miles per gallon their Civic Hybrid would get. Honda denies these allegations, but has decided to settle a number of lawsuits filed against it by paying up to $200 to each purchaser of the Civic Hybrid between 2003 and 2009.
The seven plaintiffs’ lawyers for the settlement have requested $8.474 million for their services – as compared to $200 for each plaintiff.
This amount seems especially exorbitant when compared to what is likely to be paid out in the settlement. Approximately 120,000 people bought Civic Hybrids between 2003 and 2009. The compensation package for these owners will amount to $24 million (120,000 owners X $200 per owner). Accordingly, the plaintiffs’ lawyers’ fee ($8.474 million) is 35.3 percent of the amount being given to ALL owners – seven people are getting 35.3 percent of the compensation given to the group of 120,000 class members. Continue Reading »
Posted in Civil Justice & Litigation | Tagged CAFA, litigation, litigation industry | Leave a Comment »
Class action lawsuits alleging data privacy-related violations were quite prevelant in 2011, and observers are expecting that trend to continue, if not expand, in 2012. The Legal Pulse has published a series of posts on one key issue in such suits – what constitutes “harm” in the context of standing to sue – over the past six months, including our final commentary of 2011, Judge “Likes” Plaintiffs’ Arguments, Online Privacy Class Action Proceeds.
One other late 2011 online privacy ruling escaped our attention until recently, Reilly v. Ceridian Corporation from the U.S. Court of Appeals for the Third Circuit. In a departure from Seventh and Ninth Circuit rulings in similar cases, Judge Aldisert’s unanimous opinion affirmed a district court’s dismissal of Reilly’s class action for lack of Article III standing to sue.
In 2009, a hacker broke into payroll processing firm Ceridian’s system and potentially accessed names, social security numbers, dates of birth, and account numbers. Investigators couldn’t determine if the hacker read or copied any data. Ceridian clients filed suit alleging emotional distress and financial harm due to the need to closely monitor their credit.
On the threshold issue of standing, Judge Aldisert found that Reilly’s allegations didn’t demonstrate any ”actuality” and “imminency” of harm, but relied instead on a string of conjectures. He pointedly wrote:
Unless and until these conjectures come true, Appellants have not suffered any injury; there has been no misuse of the information, and thus, no harm.”
Posted in Civil Justice & Litigation | Tagged litigation, litigation industry, privacy | Leave a Comment »
WLF Legal Pulse Posts
- Judge “Likes” Plaintiffs’ Arguments, Online Privacy Class Action Proceeds
- On the Passing of Professor Larry Ribstein
- Update: Judge Strikes Down Texas’ Irrational Speech Limits on Beer Promotion
- Overlooked Provisions in Appropriations Bill Bring Sunshine to ObamaCare Health Fund
WLF Litigation Developments
- Amicus brief filed in support of Supreme Court cert petition in Alien Tort Statute case, Rio Tinto v. Sarei
- Amicus brief filed in California Supreme Court case regarding scientific evidence, Sargon Enterprises v. U. of California
- Litigation Update issued upon Ninth Circuit’s decision of UMG Recordings v. Veoh
WLF Publications
- Pennsylvania High Court May Rule On Minority Shareholders’ Rights, by The Honorable Dick Thornburgh and David R. Fine
- High Court’s Brown V. EMA Message: Empirical Justification Matters In First Amendment Cases, by Paul Smith and Katherine Fallow
- Preemptive Strike Affirmed: Plainly Deficient Class Claims Dismissed At Pleadings Stage, by J. Russell Jackson
- Court Ruling Casts Doubt On FDA’s Use Of Guidance Documents, by Karla L. Palmer and Jeffrey N. Gibbs
Posted in Regulation of Free Enterprise | Leave a Comment »
- In mid-trial, judge throws out high-profile Foreign Corrupt Practices Act prosecution (Blog of Legal Times)
- A top ten list of significant class action rulings in 2011 (Class Action Countermeasures)
- Have mergers and acquisition-related suits replaced securities fraud cases as preferred class action lawyers’ main focus? (D&O Diary)
- Another top ten list: the worst drug/medical device liability rulings of 2011 (Drug & Device Law)
- FDA issues draft guidances on off-label drug use communications (FDA Law Blog)
- Copyright troll Righthaven auctions off its domain name to raise $$$ to pay legal fees (Wired’s Threat Level)
- Nantucket wind farm project clears one legal hurdle brought by NIMBY environmental activists (Law and the Environment)
- De facto ban on natural gas exploration in Pennsylvania township put to legal test (Pittsburgh Tribune-Review)
Posted in Civil Justice & Litigation, Environmental Law & Regulation, Health Care, Preserving Innovation/Intellectual Property | Leave a Comment »
Cross-posted by Forbes.com at WLF contributor site
Federal courts spent the last two weeks of 2011 cranking out notable rulings in many areas of law and affecting a broad range of American businesses. One particularly interesting decision came from the Northern District of California, a hotbed of online privacy-related class action litigation. Judges there have generally been stiff-arming plaintiffs, as a November 28 Legal Pulse post discusses, but one suit against Facebook has now survived a motion to dismiss.
In Fraley et al. v. Facebook, plaintiffs sued Facebook under California’s Right of Publicity Statute and its Unfair Competition Law alleging that the social networking giant’s “Sponsored Stories” program harmed them. A Sponsored Story appears on a Facebook friend’s page when another friend indicates he or she “likes” something. It includes the friend’s name, a photo, and the “like” assertion along with an advertiser’s logo. The plaintiffs argue that Facebook is using them to endorse products or services without their permission and without compensation, an action which allegedly earns Facebook additional advertising revenue.
Presiding Judge Lucy Koh had rejected class action plaintiffs’ arguments in other recent privacy cases, including the Low case discussed in our November 28 post. She saw the situation in Fraley as being much different, however. Judge Koh distinguished Fraley from those cases, noting that Fraley alleges a violation of a statutory right, which automatically confers standing. She also found that unlike in Low, where the economic harm involved unwittingly helping advertisers advertise to them, in Fraley the harm involved the economic value of a commercial endorsement to someone else.
Judge Koh’s reasoning isn’t entirely convincing on the difference between the two. Continue Reading »
Posted in Civil Justice & Litigation | Tagged litigation, litigation industry, privacy | 2 Comments »
University of Illinois College of Law Professor Larry Ribstein passed away at the age of 65 on December 24. Larry personified the term “prolific writer.” Washington Legal Foundation is honored to have published seven papers written by Larry over a 12-year span, which can all be accessed here. Our favorites were two papers questioning the constitutionality of paternalistic speech-related securities laws which protected investors from themselves, and a Legal Backgrounder co-authored with Professor Henry Butler advancing the notion that shareholders should be allowed to vote on whether the provisions of Sarbanes-Oxley should apply to their smaller companies.
When authoring article after article for law reviews, book chapters, and entire books failed to completely satisfy his endless intellectual curiosity, he started up one of the first widely read legal blogs on the Internet, Ideoblog. After years of penning almost daily posts on a wide variety of legal, policy, and cultural subjects, Larry joined a number of other like-minded professors as a primary contributor to Truth on the Market, a site we frequently reference in our Friday “Finger on the Pulse” blog post summaries. Truth on the Market has been offering testimonials from Larry’s peers and others all this week at the site.
Larry’s work, educational innovations, and always original scholarship were an inspiration to us at WLF, and we will miss him.
Posted in Regulation of Free Enterprise | 2 Comments »
- Shareholder activists urged to pursue proposals on hydraulic fracturing (Fracking Insider)
- Appeals court issues key ruling on settlement of antitrust class actions (Law.com)
- 9th Circuit ruling a sign of things to come in 2nd Circuit Viacom v. YouTube case? (Copyhype)
- New York’s notorious Martin Act ruled to not preempt state securities fraud lawsuits (D&O Diary)
- The Foreign Corrupt Practices Act turns 34 (FCPA Professor)
- Does federal trial court ruling bode poorly for future challenge to federal “voluntary” child-directed food and beverage ad guidelines? (FDA Law Blog)
- Top five OSHA initiatives to watch out for in 2012 (OSHA Law Update)
Posted in Civil Justice & Litigation, Environmental Law & Regulation, Preserving Innovation/Intellectual Property, Regulation of Free Enterprise | Leave a Comment »
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