December 21, 2009

Around the web, December 21

• A seeming, or a real, increase in black lung disease? [Stier, Mass Tort Lit]
• NERA releases 2009 securities litigation study [Kevin Lacroix, Lyle Roberts]
• Honest Services Fraud & Antitrust: Will Supreme Court Re-Write Rules For "Competition Crimes"? [Dugan/Botti, WLF]
  
• Name of NYT's Morgenson might be on the cover of that business book, but check the fine print [Stoll, Future of Capitalism]
• Continuing the discussion: "Vanderbilt Law Review En Banc PCAOB Roundtable" [ConcurOp]
• Big plaintiff firms continue push into patent litigation [Baxter, AmLaw Daily]
• "Wyeth v. Levine Scholarship Roundup" [Civil Pro/Fed Courts Blog]
• Wrongful opinion punished? "Civil Conspiracy Lawsuits Filed Against Climate Change Deniers" [SolveClimate]

October 21, 2009

Equally unjust in civil as in criminal cases

Don't Americans viscerally reject ex post facto laws, even in civil cases? Thomas Jefferson suggested as much in an 1813 letter when he wrote:

The sentiment that ex post facto laws are against natural right, is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong.

And yet...

• In Michigan, the state House of Representatives this year passed a bill to to repeal a 1995 law that prohibited tort claims against pharmaceutical companies if the drugs had been approved by the Food and Drug Administration. The bill would wipe away more than a dozen years of legal protection for the companies by allowing retroactive lawsuits back to 1996. (More from Lawrence McQuillan of the Pacific Research Institute.)

• In Washington, D.C., Democratic members of the House Judiciary Committee this week introduced a bill to revise the Patriot Act. As AP reports, one of the provisions "would repeal the retroactive immunity given to telephone companies, who complied with a Bush administration warrantless wiretapping program." The House bill, H.R. 3845, mirrors a Senate bill, S. 1692. See TheDay.com story, "Dodd looking to wipe out immunity provisions for telecoms."

For more on ex post facto, see this section of The Heritage Guide to the Constitution.

Vaccine litigation not preempted in Georgia

The Georgia Supreme Court took a "breathtaking" view of the legislature's role in a 2007 vaccine preemption case, and that puts the Obama administration in an awkward position, writes Jack Park.

October 2, 2009

Around the web, October 2

• Judge Lamberth throws out Alien Tort Statute action asserted on behalf of Indonesian villagers against ExxonMobil [Blog of Legal Times, Dow Jones Newswire; Cohen Milstein, Terry Collingsworth for plaintiffs]
• "Old liability claims dog new GM" [Detroit News]
• Preemption and Wyeth ripples: "The Impact of Federal & State Safety Regulations on Liability" [Victor Schwartz et al, ALEC, PDF]
• Consumers not absolved of responsibility: Illinois federal judge grants summary judgment to defense in telemarketing class action [Russell Jackson]
• "W.Va. chamber seeks civil justice reforms" [Parkersburg News & Sentinel]
• Congrats: Prof. Moin Yahya, who's blogged for PoL, now on leave to serve on Alberta Utilities Commission [Univ. of Alberta Faculty of Law Blog]

August 24, 2009

Around the Web, August 24

• In today's Examiner, "Hot coffee is back!," Ted Frank marvels at the mythic quality of the "woman scalded by McDonald's coffee" litigation, adapted and distorted to help support other legal claims: "[These] new urban legends have been adopted wholesale by many law professors and by left-wing supporters of the trial bar. The latest iteration is a documentary called 'Hot Coffee'; statements by the makers show that they are buying (or at least are willing to sell) the trial bar's story hook, line and sinker."
• Hugh Hewitt, radio talk show host and Chapman University law professor, notes the filing of the first lawsuit in Nevada over Chinese drywall and says the last thing a recovering housing industry needs is a wave of asbestos-like litigation: "If President Obama wants to push for some legislation that will actually contribute to the recovery as opposed to hindering it via massive uncertainty and exploding deficits, he'd ask the Congress for a law that limits the drywall exposure and which caps the damages --and the lawyers' fees-- in all such disputes."
• From a few weeks ago, Miami Daily Business Review, "Federal Judge Puts Chinese Drywall Cases on 'Rocket Docket'": "With thousands of homeowners claiming their houses and health are deteriorating from sulfur-emitting Chinese drywall, a federal judge in New Orleans is intent on fast-tracking a handful of cases for trial, attorneys say....About 600 tainted Chinese drywall lawsuits have been consolidated in multidistrict litigation under U.S. District Judge Eldon E. Fallon for pretrial issues. With the help of plaintiff and defense steering committees, Fallon will select five cases to test the waters."
• The Wall Street Journal's Weekend Interview was with the governor of Texas, Rick Perry, who cites tort reform as one element -- but not the whole story -- in his state's pro-growth policies. From "Fiscal Conservatism and the Soul of the GOP": "As governor, Mr. Perry has honed in on four policy issues he believes are drawing people and businesses to the state in record numbers. Businesses like Medtronic and Caterpillar, to name two, are "coming here [because] we haven't spent all the money, the taxes are low, the regulatory climate is fair--they won't be frivolously sued--and they know when they get here that they'll find a skilled work force."
• And in The Minneapolis Star-Tribune, which covers Medtronic as a local story, the personal anecdote leads the way in a report on the Medical Device Safety Act, "On mission to sue med-tech makers."

August 17, 2009

The OSHA nominee, preemption and the Second Amendment

In an Overlawyered.com post, "David Michaels and Gun Control," Walter highlights the "strong views on firearms issues" from the President's expected nominee to head the Occupational Safety and Health Administration, epidemiologist and left-leaning public health activist, David Michaels. In an entry at the public health blog, The Pump Handle, Michaels had written passionately about guns as a workplace safety issue (and attacking the NRA in the process).

So if a Nashville restaurateur wants to ban guns from his business, it's safe to say Michaels would have his back. But what if the restaurant owner argues the case as a matter of federal preemption? After all, the Obama Administration is busy ridding federal regulations of preemption language.

From The Tennessean newspaper of Nashville, an article, "Nashville restaurateur seeks quick ruling on guns lawsuit":

Nashville restaurant owner plans to ask today for a quick decision in his lawsuit challenging the new state law that allows guns in restaurants and bars.

Randy Rayburn, who owns Sunset Grill, Midtown Cafe and Cabana, and his fellow plaintiffs will file a motion in Davidson County Chancery Court seeking summary judgment in the case, attorney David Randolph Smith said Friday.

Smith said the law, which took effect last month, creates unsafe workplaces, violating federal occupational safety and health laws.

"We're moving for summary judgment on the idea that state law is pre-empted by OSHA," he said.

So preemption serves the public health and safety goals that Michaels embraces, but President Obama, who will nominate him, opposes preemption.

And so does the plaintiffs' bar, which helped fund the creation of the Project on Scientific Knowledge and Public Policy, which Michaels heads. SKAPP's policies closely align with those of the American Association for Justice, which campaigns against preemption as hostile to justice and wealth redistribution through litigation.

The only way to resolve these tensions? Ad hoc arbitrariness! Just what the nation needs in regulatory policy.

August 14, 2009

Preemption, in trouble in the courts, as well

From our new favorite law blog, Consumer Advertising Law Blog, "If State Law Preemption Is the Best Stuff On Earth, It Is Now Endangered":

In a much anticipated ruling (opinion found here), yesterday the Third Circuit revived a consumer class action against the maker of Snapple, holding that FDA did not preempt a review under state law of whether Snapple's claims that its drinks are "all natural" was misleading because they (used to) contain corn syrup.

The New Jersey trial court dismissed the case (opinion found here) because of implied preemption or that "FDA regulations so thoroughly occupy the field of beverage labeling at issue in this case that it would be unreasonable to infer that Congress intended states to supplement this area."

More from Law.com, "3rd Circuit Reinstates Consumer Fraud Class Action Against 'All Natural' Snapple"

August 13, 2009

Reversing preemption, one reg at a time

Following up on yesterday's post about the Obama Administration's intent to reverse preemption language in Executive Branch regulations, which noted its banishment from the National Highway Traffic Safety Administration's rule on roof crush standards, we searched the 2009 Federal Register for similar language in other rules, that is, the term "implied preemption." Here are the relevant results, i.e., rules that specifically reject preemption.

• fr12my09R Federal Motor Vehicle Safety Standards; Roof Crush Resistance;
• fr03mr09R Federal Motor Vehicle Safety Standard; Air Brake Systems
• r20jy09R Federal Motor Vehicle Safety Standards; Door Locks and Door
• fr13au09R Federal Motor Vehicle Safety Standards; Controls, Telltales and
• fr04mr09P Federal Motor Vehicle Safety Standard; Rearview Mirrors

(We originally had links here, but they appeared to be temporary urls. To find the entries, just repeat the search.)

Typical is the language from the rule on review mirrors:

[The] Supreme Court has recognized the possibility of implied preemption: State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law, can stand as an obstacle to the accomplishment and execution of a NHTSA safety standard. When such a conflict is discerned, the Supremacy Clause of the Constitution makes the State requirements unenforceable. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000). NHTSA has considered today's ANPRM and does not currently foresee any potential State requirements that might conflict with it. Without any conflict, there could not be any implied preemption.

UPDATE (11:10 a.m.): More discussion of FDA preemption at the FDA Law Blog, April 29, "Change in FDA Preemption Position? New Rule Largely Eliminates Preemption Discussion"

August 12, 2009

Obama Administration quietly eviscerates regulatory preemption

The Washington Post published an important op-ed last week on preemption that did not seem to get much traction in the blogosphere. Perhaps because it was about preemption.

The piece, "Obama vs. the Regulators -- A Little-Noticed Decision Undercuts Health and Safety Rules," was by written Jeff Rosen and Jay Lefkowitz, litigation partners at Kirkland & Ellis and former OMB general counsels during the last Bush Administration. In it, they draw attention to President Obama's May 20 "Memorandum for the Heads of Executive Department Agencies," which instructs Executive Branch agencies not to include any preemption language in regulatory preambles and to review the past 10 years' worth of regulations for preemption language:

It may all sound very technical, but the consequences of Obama's new policy are broad and serious. When federal health and safety regulators issue rules, they base them on scientific analysis and conduct cost-benefit analyses of their overall impact. By contrast, state court juries may establish rules based on the unusual facts of a single case that could have terribly detrimental implications if applied more broadly. It is important, therefore, that the work of government health and safety experts has actual legal effect and not be just for "show." Taxpayers are footing the bill for these regulators, and the national standards they issue are supposed to be effective and binding.

The memo's stated reason is "federalism," but as the authors note, the memorandum misrepresents Justice Brandeis' thinking on the issue. The authors also wonder at the lack of attention toward this sweeping regulatory instruction; elsewhere Rosen has noted that the issuing of a memorandum - as opposed to an executive order - probably lessened the media's interest, which was, of course, the point.

The Obama Administration has already demonstrated its clear opposition to preemption, specifically the Bush Administration's practice of including preemption language in regulatory preambles. The National Highway Traffic Safety Administration's* roof strength rule (promulgated April 30, published in the Federal Register May 12) abandoned the proposed rule's preemption analysis and instead states:

Implied Preemption. We have reconsidered the tentative position presented in the NPRM. We do not foresee any potential State tort requirements that might conflict with today's final rule. Without any conflict, there could not be any implied preemption.

One wonders who exactly benefits from a haphazard, state-based regulatory regime.

From the American Association for Justice, a news release, April 9, "AAJ Calls on New NHTSA Chief to Address Roof Crush Standard," with the sub-head, "Remove Preemption from Old Proposed Rule." The Naderites at Public Citizen had also lobbied against the roof crush standard proposed by the Bush Administration.

* Corrected earlier wrong version of NHTSA's full title.

August 6, 2009

Pre-Emption Issue Gets Space in WaPost

In one of the most cogent, readily understandable explanations of the importance of federal pre-emption, Jeff Rosen and Jay Lefkowitz write in the Washington Post today a column taking President Obama to task for kowtowing to the trial lawyers. Good stuff.