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SBA Management Review: Office of Field Operations

House Small Business Committee News - Wed, 01/29/2020 - 11:30am

The Committee on Small Business will hold a hearing titled, “SBA Management Review: Office of Field Operations.” The hearing is scheduled to begin at 11:30 A.M. on Wednesday, January 29, 2020 in Room 2360 of the Rayburn House Office Building.

The SBA’s 68 district offices and ten regional offices are the point of delivery for most SBA programs and services. They work to accomplish the SBA mission by providing quality service to the small business community; and work with SBA resources partners, other partners and intermediaries. The Office of Field Operations is responsible for overseeing these offices to ensure the agency meets its mission to serve small businesses and entrepreneurs all over the nation. This hearing will provide Members the opportunity to learn more about the office and review its structure and performance.


To view a livestream of the hearing, please click here. 


Hearing Notice 

Hearing Memo 

Witness List 

Witnesses 
Mr. Michael A. Vallante
Associate Administrator
United States Small Business Administration
Washington, DC
Testimony 


*Witness testimony will be posted within 24 hours after the hearing’s occurrence





 
 
 
 
 
 
 
 

Exclusion of Junk Science in “Bair Hugger” MDL Shows Daubert Is Still Breathing

WLF Legal Pulse - Thu, 01/23/2020 - 3:13pm

By Joe G. Hollingsworth and Caroline Barker

Joe G. Hollingsworth is a Partner with Hollingsworth LLP and is the WLF Legal Pulse’s Featured Expert Contributor on Litigation Strategies. Caroline Barker  is an Associate with Hollingsworth LLP.

U.S. District Judge Joan Ericksen extinguished an entire federal multidistrict litigation and breathed life into the Court’s gatekeeping duty to guard against unreliable science when it excluded unfounded expert testimony in In re Bair Hugger Forced Air Warming Devices Products Liability Litigation, MDL No. 15-2666, 2019 WL 4394812 (D. Minn. July 31, 2019).  More than 5,800 plaintiffs sued 3Mthe manufacturer of Bair Hugger—which warms patients during knee surgery through a blanket filled with heated forced air—alleging that the forced air escaped the blanket and created turbulence in the operating room, stirring bacteria-carrying dust and causing periprosthetic joint infection when the dust reached the surgical site.

3M faced a long road and tortuous battle before the court ultimately pulled the plug on the litigation.  Over the course of four years, it became increasingly apparent that there was something dramatically deficient in plaintiffs’ scientific story.  Although the court denied 3M’s initial Daubert challenges and allowed a first bellwether trial to proceed, even in that case the court excluded in its entirety one of plaintiffs’ two theories for how the Bair Hugger caused infections.  That first trial ended with a defense verdict:  the jury found that plaintiffs had failed to prove that the Bair Hugger causes surgical-site infections.  The defense verdict illustrates the weakness of plaintiffs’ claims, but there were even earlier signs of problems for plaintiffs:  The first trial case was actually the sixth in line for trial, but the five earlier plaintiffs dismissed or otherwise avoided going to trial in them.  After that first defense verdict, the plaintiffs in the next two trial cases told the court that they didn’t want to go forward.  It is against this backdrop of repeated plaintiff dismissals and a defense jury verdict that the court revisited the earlier denial of 3M’s Daubert motions.

In its reconsideration, the court systematically tore down plaintiffs’ experts’ opinions using the experts’ own trial testimony against them.  (We commend the full opinion for review if you are interested in a blow-by-blow dismantling of plaintiffs’ experts.)  The Eighth Circuit has long held that “the district court’s gatekeeping role separates expert opinion evidence based on ‘good grounds’ from subjective speculation that masquerades as scientific knowledge.”  Glastetter v. Novartis Pharm. Corp., 252 F.3d 986, 989 (8th Cir. 2001), aff’g, 107 F. Supp. 2d 1015 (E.D. Mo. 2000).1

Judge Ericksen emphasized the hallmarks of unreliable expert testimony when she not only found that the plaintiffs’ expert’s air flow computer model underpinning plaintiffs’ causation theory was designed specifically for the litigation (an alarming fact in itself), but also that the plaintiffs’ air flow model lacked applicability to the real-world—i.e., the expert’s “conclusions have drifted from the factual realities of his test.”  In re Bair Hugger, 2019 WL 4394812, at *9.  Critically, the model failed to account for “key” known causes of air flow disruption that occur in real-world operating suites—such as opening doors, the movement of doctors and nurses, and surgical machinery and equipment.  Without any explanation, the expert ignored these factors as inconsequential, despite relying on a study that found the biggest factor on airborne microorganisms in an operating room is the presence and activity of people in the room.  See id. at *18-19.  He audaciously proffered the untested theory that the movement of personnel in the operating room would exaggerate the findings of his air flow model for the Bair Hugger, claiming that “even reaching a hand in” to test a real-world model would “interrupt the results.”  Id. at *6-7.  But the court rejected the experts’ unfounded extrapolations and conjecture, finding that the expert’s “attempted gap-filling” between his simulation and real-world conditions was “more like a leap of faith than an inferential leap.”  Id. at *8.

Similarly, the court re-examined the observational and epidemiology studies the plaintiffs’ three medical experts referenced, revealing that the Bair Hugger was not the only thing full of hot air.  Plaintiffs’ experts ignored numerous limitations that the authors of the published studies themselves identified, including explicit disclaimers by the authors stating that the studies did not establish causation.  The court rejected plaintiffs’ assertion that observational studies contain “‘pointless’ caveats” that their experts need not address, and held that the plaintiffs’ experts’ unreliably excluded obvious alternative explanations for declining infection rates—such as the introduction of bacterial screening or new antibiotics—when they reached conclusions that the study authors themselves were not willing to draw.  Id. at *18-19.

Without these experts, plaintiffs had no proof that Bair Hugger causes infections, no claim, and no case.  The MDL is now kaput (pending an appeal—which is in its briefing stage).  We applaud the result, and 3M in this case, for sticking to its guns and continuing to challenge what the Court ultimately decided was unreliable science.  Had defendants caved and not held the line after the court rejected the initial Daubert challenges, then they would never have had the opportunity to turn the tide on bad science.  And there is a strong consensus that the science doesn’t back up plaintiffs’ claims:  as the court pointed out, in 2018, at an International Consensus Meeting, 93 percent of scientists agreed “[t]here is no evidence to definitively link [forced-air warming] to an increased risk[.]”  Id. at *20.  Bair Hugger demonstrates that hope is not lost, that Daubert is not dead, and that perseverance has its rewards.

Note

The post Exclusion of Junk Science in “Bair Hugger” MDL Shows <em>Daubert</em> Is Still Breathing appeared first on Washington Legal Foundation.

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WLF Urges Massachusetts Judiciary to Adopt Rule Allowing Both Sides to Address Damages Amount

WLF Legal Pulse - Thu, 01/23/2020 - 2:46pm

“The proposed rule is sensible, fair, and essential for dispensing civil justice.”
—Cory Andrews, WLF Vice President of Litigation

WLF letter available here.

WASHINGTON, DC—Earlier today, Washington Legal Foundation (WLF) joined a coalition of leading business, civil justice, and public-policy groups in urging the Massachusetts Supreme Judicial Court to adopt a proposed rule—Rule 51(a)(2) of the Massachusetts Rules of Civil Procedure—that would help to ensure that civil litigation in the Commonwealth is procedurally fair to all parties.

In 2014, the Massachusetts Legislature amended Mass. Gen. Laws. c. 231, §13B to give plaintiffs in civil actions the statutory right to request a specific amount in damages during closing arguments. WLF’s letter cites studies showing that plaintiffs’ attorneys, by anchoring their closing argument to a specific amount of damages, are more likely to obtain larger jury awards.

But because the plaintiffs’ attorney gives closing argument last in Massachusetts civil trials, defense counsel have no opportunity to rebut the requested amount. In response to this procedural unfairness, the Massachusetts Supreme Judicial Court’s Standing Advisory Committee has proposed an amendment to Rule 51. Under Rule 51(a)(2), if a party who intends to suggest a specific monetary amount fails to notify all parties of that amount before closing argument, the court must structure the closing argument to allow the opposing party an opportunity to respond to the amount requested.

WLF’s letter was drafted with the pro bono assistance of Mark A. Behrens, a partner in the Washington, D.C. office of Shook, Hardy & Bacon L.L.P.

Celebrating its 43rd year, WLF is America’s premier public-interest law firm and policy center advocating for free-market principles, limited government, individual liberty, and the rule of law.

The post WLF Urges Massachusetts Judiciary to Adopt Rule Allowing Both Sides to Address Damages Amount appeared first on Washington Legal Foundation.

Categories: Latest News

CLOSING THE GATE TO JUNK SCIENCE: How Defendants Can Support Rigorous Judicial Oversight of Expert Testimony

WLF Legal Pulse - Wed, 01/15/2020 - 11:43am

Friday, January 24, 2020, 1:00-2:00 p.m.

Featuring:

Evan M. Tager and Craig A. Woods, Partners, Mayer Brown LLP, and co-authors of WLF’s Monograph Admissibility of Expert Testimony: Manageable Guidance for Judicial Gatekeeping.

Description:

Expert testimony not only can decide the outcome of products-liability and toxic-tort lawsuits, but also can impact key rulings such as class-action certification and damages determinations. Judges must act as “gatekeepers,” the U.S. Supreme Court has proclaimed, to shield lay juries from what Justice Antonin Scalia called “expertise that is fausse and science that is junky.” Our speakers are two of a group of attorneys who authored a WLF Monograph, Admissibility of Expert Testimony: Manageable Guidance for Judicial Gatekeeping, released on January 15. The authors wrote this Monograph primarily for a judicial audience. In this Webinar, Tager and Woods will discuss how outside and in-house counsel can encourage judges to apply the Monograph’s principles and will present several of the publication’s case studies from a practitioner’s point of view.

The post CLOSING THE GATE TO JUNK SCIENCE: How Defendants Can Support Rigorous Judicial Oversight of Expert Testimony appeared first on Washington Legal Foundation.

Categories: Latest News

WLF Monograph Offers Judiciary Guidance for Gatekeeping of Expert Testimony

WLF Legal Pulse - Wed, 01/15/2020 - 11:40am

Click here to visit publication page.

WASHINGTON, DC—Washington Legal Foundation (WLF) today released a Monograph on the key principles federal and state judges should follow when assessing the admissibility of expert testimony in civil litigation. Expert testimony not only can decide the outcome of products-liability and toxic-tort lawsuits, but also can impact key rulings such as class-action certification and damages determinations. Judges must act as “gatekeepers,” the U.S. Supreme Court has proclaimed, to shield lay juries from what Justice Antonin Scalia called “expertise that is fausse and science that is junky.”

A team of Mayer Brown LLP attorneys led by a co-leader of the firm’s Supreme Court and Appellate practice, Evan M. Tager, authored Admissibility of Expert Testimony: Manageable Guidance for Judicial Gatekeeping on a pro bono basis. The Monograph features a foreword by Facebook, Inc. Vice President and Deputy General Counsel Paul S. Grewal, who before joining the company served as a United States Magistrate Judge on the U.S. District Court for the Northern District of California.

The Monograph’s first part discusses four aspects of the judicial gatekeeping function that cut across different substantive areas of law. The authors first explain how the Supreme Court’s  “Daubert trilogy” of decisions established the scope of a judge’s gatekeeping duties. They next illustrate how “hired-gun” experts complicate a juror’s task of deciding liability and how courts can mitigate the confusion. They go on to address how courts must answer a “recurring riddle”—does the expert’s testimony implicate the evidence’s admissibility (a judicial function) or does it go to its weight (a jury’s responsibility). Finally, the authors analyze the tools judges can use to weed out junk science, including holding Daubert hearings and appointing independent technical experts.

The Monograph’s second part delves deeper into these critical aspects of gatekeeping through case studies. The authors explore in detail judicial best-practices for determining relevance and reliability in four areas of law: (1) medical causation; (2) insurance bad faith; (3) class-action certification; and (4) valuation testimony for damage calculations. The medical-causation case study offers especially valuable insights on how judges should manage experts testifying on general and specific causation.

Electronic copies of this Monograph are available online at www.wlf.org. Inquire about additional hard copies with WLF Legal Studies Division Chief Counsel Glenn Lammi (glammi@wlf.org).

Washington Legal Foundation preserves and defends America’s free-enterprise system by litigating, educating, and advocating for free-market principles, a limited and accountable government, individual and business civil liberties, and the rule of law

The post WLF Monograph Offers Judiciary Guidance for Gatekeeping of Expert Testimony appeared first on Washington Legal Foundation.

Categories: Latest News

Admissibility of Expert Testimony: Manageable Guidance for Judicial Gatekeeping

WLF Legal Pulse - Wed, 01/15/2020 - 11:36am

By Evan M. Tager, Craig A. WoodsReginald R. Goeke, and Daniel E. Jones, Partners with Mayer Brown LLP; Carl J. Summers and Matthew C. Sostrin, Counsel with Mayer Brown LLP; and Jonathan S. Klein, an Associate with the firm.

Featuring a foreword by The Honorable Paul S. Grewal, United States Magistrate Judge (ret.), who serves as Vice President and Deputy General Counsel of Facebook, Inc.

Click here for this publication’s press release.

Summary: This 90-page Monograph explores the key principles federal and state judges should follow when assessing the admissibility of expert testimony in civil litigation. Expert testimony not only can decide the outcome of products-liability and toxic-tort lawsuits, but also can impact key rulings such as class-action certification and damages determinations. Judges must act as “gatekeepers,” the U.S. Supreme Court has proclaimed, to shield lay juries from what Justice Antonin Scalia called “expertise that is fausse and science that is junky.”

To inquire about printed copies, email glammi@wlf.org.

The post Admissibility of Expert Testimony: Manageable Guidance for Judicial Gatekeeping appeared first on Washington Legal Foundation.

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Enhancing Patent Diversity for America’s Innovators

House Small Business Committee News - Wed, 01/15/2020 - 11:30am

The Committee on Small Business will hold a hearing titled, “Enhancing Patent Diversity for America’s Innovators.” The hearing is scheduled to begin at 11:30 A.M. on Wednesday, January 15, 2020 in Room 2360 of the Rayburn House Office Building.

The American economy is reliant on its ability to innovate and retain its status as a global leader. To continue the nation’s leadership in innovation, it’s important to ensure every person and idea has equal opportunity to intellectual property protections. The Study of Underrepresented Classes Chasing Engineering and Science Success (SUCCESS) Act, enacted last Congress, required the United States Patent and Trademark Office (USPTO) Director to consult with the Small Business Administration to identify publicly available data on the number of patents women, minorities, and veterans apply for and obtain. The hearing will examine the findings of the report and discuss the legislative options for increasing the ability and opportunity for a diverse population of innovators to gain patent protection.


To view a livestream of the hearing, please click here. 


Hearing Notice 

Hearing Memo 

Witness List 

Witnesses 
Ms. Andrea Ippolito
Program Director of W.E. Cormell
Cornell University
Ithaca, NY
Testimony

Dr. Rashawn Ray
David M. Rubenstein Fellow
The Brookings Institution
Washington, DC
Testimony 

Ms. Janeya Griffin
Managing Member and Principal Consultant
The Commercializer, LLC
Lancaster, CA
Testimony 


*Witness testimony will be posted within 24 hours after the hearing’s occurrence





 
 
 
 
 
 
 

Second Circuit Paves Way for Future Insider Trading Prosecutions

WLF Legal Pulse - Mon, 01/13/2020 - 12:56pm

By Gregory A. Brower and Thomas J. Krysa

Gregory A. Brower is a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC. Mr. Brower also serves on WLF Legal Policy Advisory Board and is the WLF Legal Pulse’s Featured Expert Contributor, White Collar Crime and Corporate Compliance.  Thomas J. Krysa is a Shareholder with the firm in its Denver, CO office.

In a recent Second Circuit decision, a divided three-judge panel drew a stark distinction between two federal securities fraud statutes likely providing a blueprint for future criminal prosecutions for insider trading.  In United States v. Blaszczak, a Second Circuit panel held that the Dirks “personal benefit” test, which applies to certain civil and criminal insider trading charges, did not apply to criminal insider trading charges brought under Title 18 of the federal criminal code. 1  This decision could have significant implications for future insider trading prosecutions.

The Tipping Scheme

In Blaszczak, the government charged several individuals with securities fraud for a tipping scheme involving confidential information from the Centers for Medicare and Medicaid Services (CMS).  Blaszczak, a former CMS employee, was employed as a paid “political-intelligence” consultant for various hedge funds.  He used former CMS colleagues as inside sources at the agency to obtain key information involving future agency rule changes that would move the stock market when publicly disclosed.  He tipped this material, nonpublic information to his hedge fund contacts who traded on the information reaping millions in profits.  Although Blaszczak received consulting fees from the hedge funds for his services, his friend and inside source at CMS (the lone-charged CMS tipper) did not receive any monetary benefit for his tips.  The government alleged that the CMS source received a benefit in exchange for the tips by virtue of his close friendship with Blaszczak who provided him with private sector employment advice and professional introductions. 

The Federal Securities Fraud Statutes

The government charged the tipping scheme under both Section 10(b) of the Securities Exchange Act of 1934 (Title 15) and Section 1348 of Title 18 of the federal criminal code.2  Section 10(b) and its related Rule 10b-5 are the traditional securities fraud provisions that are charged by both the SEC and DOJ in civil and criminal cases, respectively.  In the insider trading context, Section 10(b) and Rule 10b-5 have been analyzed extensively at the circuit court and Supreme Court levels.  Section 1348, a criminal statute enacted in 2002 and charged solely by the DOJ, has received much less attention.  Section 1348 was patterned after the federal mail and wire fraud statutes.  Generally speaking, when charging Section 1348 securities fraud the government must prove that an individual knowingly and willfully participated in a fraudulent scheme to defraud a person in connection with a securities transaction.

Section 10(b) and Rule 10b-5 tipping cases have their own unique judicially-created requirements.  In Dirks, the Supreme Court held that in order to prove tipping liability under Section 10(b) and Rule 10b-5 the government must prove that the insider breached a duty of trust and confidence by tipping material, nonpublic information to others in exchange for a “personal benefit.” 3  During the last six years, the definition of a personal benefit has been vigorously litigated in the courts. 4  The results have varied.  Currently, a personal benefit is broadly defined for the most part and can range from a clear monetary benefit such as kickback, to a mere quid pro quo between friends or relatives.  Under Dirks, a tippee, or recipient of inside information, is not liable under Section 10(b)/Rule 10b-5 unless the government proves he or she traded on, or tipped the inside information, while knowing that the original tipper received a personal benefit in exchange for the information. 

The Jury Instructions                    

In Blaszczak, the trial judge gave differing instructions to the jury with respect to the Section 10(b)/Rule 10b-5 and Section 1348 securities fraud charges.  For the Section 10(b)/Rule 10b-5 charges, the trial judge instructed the jury that the government had to prove the Dirks personal benefit test; that is that the CMS tipper received a personal benefit in exchange for providing the material, nonpublic information to Blaszczak and that the downstream tippees knew this.  Conversely, for the Section 1348 charges, the trial judge declined the defendants’ request to provide a Dirks-like instruction, and instead instructed the jury that the government must prove the defendants “participated in a scheme to embezzle or convert confidential information from CMS by wrongfully taking that information and transferring it to his own use or the use of someone else.”    

After four days of deliberations, the jury returned a split verdict on the securities fraud charges.  Of note, the jury acquitted all defendants on the Section 10(b)/Rule 10b-5 charges while at the same time convicting all but one defendant (the CMS tipper) on the Section 1348 charges.  One can infer from this result that the government likely failed to prove the Dirks personal benefit test for the Section 10(b)/Rule 10b-5 charges.

The Second Circuit Decision            

On appeal, the defendants argued that the trial judge erred by not including a Dirks-like instruction to the jury for the Section 1348 charges.  The defendants argued that the term “defraud” should be construed consistently and have the same meaning in insider trading cases across the securities fraud statutes whether charged under Title 15 or Title 18.  The Second Circuit panel disagreed.  The panel noted that the personal benefit test was a judge-made doctrine that arose from the Exchange Act’s statutory purpose (i.e., to eliminate the use of inside information for personal advantage).  The panel drew a distinction between this statutory purpose and Section 1348 which it said was rooted in the embezzlement or misappropriation theory of fraud, where the Dirks test could find no footing.  The panel further noted that Congress enacted Section 1348 as part of the Sarbanes-Oxley Act of 2002 in large part to overcome the technical impediments of the existing Title 15 securities-fraud regime, and to provide a broader enforcement mechanism for federal prosecutors to pursue securities fraud claims.

Future Implications             

Certainly this decision will provide a blueprint for future criminal insider trading prosecutions by the DOJ under Section 1348, perhaps even in cases that are not prosecuted by the SEC due to questionable evidence supporting the Dirks personal benefit test.  However, in this potentially narrow band of cases, the DOJ still would be required to prove beyond a reasonable doubt that the defendants knowingly and willfully participated in a scheme to defraud, which always requires significant, probative evidence.  That being said, an anomalous outcome could be possible where the SEC loses a civil case that the DOJ wins criminally on the same facts.   

In addition, going forward, the Dirks personal benefit test will continue to come under scrutiny by the courts and advocates alike.  In the absence of a clear monetary benefit, the test is difficult to apply in practice particularly in a jury trial setting, and it will continue to create issues on appeal.

Finally, the Blaszczak decision could amplify the call for insider trading legislation to bring some clarity and harmony to the federal securities fraud statutes.  Until that time comes, however, the government and charged defendants will continue the ongoing tug-of-war over the boundaries of the current insider trading laws.    

Notes

The post Second Circuit Paves Way for Future Insider Trading Prosecutions appeared first on Washington Legal Foundation.

Categories: Latest News

Farming in the 21st Century: The Impacts of Agriculture Technology in Rural America

House Small Business Committee News - Thu, 01/09/2020 - 10:00am

The Committee on Small Business Subcommittee on Innovation and Workforce Development will hold a hearing titled, “Farming in the 21st Century: The Impacts of Agriculture Technology in Rural America.” The hearing is scheduled to begin at 10:00 A.M. on Thursday, January 9, 2020 in Room 2360 of the Rayburn House Office Building.

In recent decades technology has disrupted many industries including manufacturing, media, banking, and retail shopping. The same technological innovation is happening in agriculture. New advances in agricultural software, computer hardware and durable farm equipment are building towards comprehensive solutions that significantly improve farming conservation, plant growth and processing, yield and input mapping, and even autonomous self-driving tractor capabilities. Technology and data can help farmers in many ways. The hearing will highlight many advances made in the agriculture technology industry and how federal policy can be utilized for even greater success.


To view a livestream of the hearing, please click here. 


Hearing Notice 

Hearing Memo 

Witness List 


Witnesses 

Mr. Kevin M. France
President and CEO
SWIIM System, Ltd.
Denver, CO
Testimony

Dr. David Potere
Head of GeoInnovation
Indigo Agriculture
Boston, MA
Testimony 

Mr. Robert Meza 
Co-Founder and Farmer 
Emerald Gardens 
Bennett, CO
* Testifying on behalf of the Rocky Mountain Farmers Union 
Testimony 

Dr. Douglas Jackson-Smith
Professor and Assistant Director
School of Environment and Natural Resources
The Ohio State University
Wooster, OH
Testimony


*Witness testimony will be posted within 24 hours after the hearing’s occurrence





 
 
 
 
 
 

Eighth Circuit Affirms First Amendment Rights of Alcohol Makers, Distributors, and Retailers

WLF Legal Pulse - Wed, 01/08/2020 - 12:14pm

“As today’s decision confirms, the First Amendment cannot abide regulations that seek to keep people in the dark for what the State perceives to be their own good.”
—Cory Andrews, WLF Vice President of Litigation

WASHINGTON, DC—Earlier today, the U.S. Court of Appeals for the Eighth Circuit affirmed a district court ruling that—with benefit of a bench trial—invalidated on First Amendment grounds portions of a Missouri law that restricted truthful, non-misleading commercial speech. The decision was a victory for Washington Legal Foundation (WLF), which filed an amicus curiae brief in the case urging affirmance. WLF’s brief was joined by the Show-Me Institute, a Missouri free-market nonprofit.

The case arose from a constitutional challenge to Missouri’s “tied-house” law. Enacted in 1934 in the wake of the repeal of Prohibition, the law prohibits alcohol manufacturers and distributors from giving any advertising-related support to alcohol retailers. Repeating the now-familiar claim of government regulators everywhere, Missouri claimed on appeal that its tied-house law regulates conduct, not speech, and so is exempt from First Amendment scrutiny. But, as WLF’s brief showed and the appeals court held, even laws aimed at proper regulatory concerns can unduly burden free-speech rights under the First Amendment.

The appeals court agreed with WLF that Missouri could not satisfy even the intermediate scrutiny prescribed by Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York. Under that test, Missouri must present solid evidence that the law’s speech restrictions directly advance its policy aims “to a material degree” and is narrowly tailored and no more restrictive than necessary. The trial record in this case contained no such evidence.

Celebrating its 43rd year, WLF is America’s premier public-interest law firm and policy center advocating for free-market principles, limited government, individual liberty, and the rule of law.

The post Eighth Circuit Affirms First Amendment Rights of Alcohol Makers, Distributors, and Retailers appeared first on Washington Legal Foundation.

Categories: Latest News

December 2019 Month in Review

WLF Legal Pulse - Mon, 01/06/2020 - 9:17am

To read more about the items below, click the link above for a PDF of the newsletter.

NEW FILINGS

To satisfy Article III’s case-or-controversy requirement, a plaintiff must prove a concrete injury in fact, not merely an injury in law. (Facebook, Inc. v. Patel)

The Consumer Financial Protection Act, which creates a bureau headed by a director who does not answer to the President, violates the Constitution’s separation of powers. (Seila Law v. CFPB)

Although some transportation workers are exempt from the Federal Arbitration Act’s mandate that arbitration agreements must be enforced, that exemption should be narrowly construed. (Wallace v. Grubhub)

Congress did not authorize the SEC to seek disgorgement—a penalty, not an equitable remedy—in securities enforcement actions in federal court. (Liu v. SEC)

The California Supreme Court should review a lower-court decision that sows confusion about when a jurisdictional appeal deadline applies. (State Farm v. Lara)

HHS’s Office of Inspector General should expand the agency’s safe harbor for drug and device makers trying to comply with the federal Anti-Kickback Statute. (In re Proposed Revisions to Anti-Kickback Statute Regulations)

RESULTS

The U.S. Supreme Court declines to review a Berkeley, California ordinance that requires all cell-phone retailers to warn their customers about the supposed dangers of ordinary cell-phone use. (CTIA—The Wireless Ass’n v. City of Berkeley)

The U.S. Court of Appeals for the District of Columbia Circuit holds that the FDA’s Deeming Rule for modified-risk tobacco products does not violate the First Amendment. (Nicopure Labs, LLC v. FDA)

The U.S. Court of Appeals for the Ninth Circuit affirms the denial of class certification in an employment discrimination action in which putative class plaintiffs could not show common issues of fact or law. (Moussouris v. Microsoft Corp.)

The post December 2019 Month in Review appeared first on Washington Legal Foundation.

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WLF Urges California High Court to Resolve Uncertainty Surrounding Appellate Filing Deadline

WLF Legal Pulse - Thu, 01/02/2020 - 3:25pm

“Simple, clear appeal deadlines are a key component of due process and the rule of law.”
—Corbin K. Barthold, WLF Senior Litigation Counsel

Click here for WLF’s letter.

(Washington, DC)—On December 23, Washington Legal Foundation joined an amicus curiae letter urging the California Supreme Court to review a crucial matter of appellate jurisdiction. The letter was submitted by the prominent California appellate law firm Horvitz & Levy LLP.

Like most other jurisdictions, California generally follows the “one judgment rule.” To keep things simple, a party must wait for a final judgment to issue before appealing. And, to keep things simple, that party is given a clear period—typically 60 days—within which to file its notice of appeal.

In this case, State Farm filed both a civil complaint and a petition for a writ of administrative mandate. When a party files just a writ petition, an order granting or denying that petition constitutes a final judgment. When a party files both a writ petition and a complaint, however, things are less clear. The appeal deadline then turns on whether the court’s order addressing the writ petition also resolves all issues and leaves nothing else to be decided.

This system works fine so long as a court’s order is clear. But in this case it wasn’t, and State Farm was left in the lurch. The trial court’s order resolving the writ petition did not say whether the court would issue a further order resolving the as yet unaddressed complaint. Four months later, the court issued a judgment that explicitly resolved all issues “in full.” State Farm met the deadline for filing an appeal from that judgment. The Court of Appeal dismissed, ruling that State Farm should instead have met the deadline for filing an appeal from the earlier order.

As Horvitz & Levy and WLF explain in their letter, State Farm was in effect left to guess when it needed to file an appeal. This is not how a proper set of appeal deadlines should function. If left to stand, the Court of Appeal’s ruling will lead parties to file scores of time-consuming and inefficient protective appeals. Others, meanwhile, will suffer State Farm’s fate: punishment for failing to guess how an unclear rule will be applied from case to case. Horvitz & Levy and WLF urge the California Supreme Court to step in and stop all this from happening. The high court should make clear that, to be appealable, an order must expressly resolve all issues and leave nothing else to be decided.

Celebrating its 43rd year as America’s premier public-interest law firm and policy center, WLF advocates for free-market principles, limited government, individual liberty, and the rule of law. 

The post WLF Urges California High Court to Resolve Uncertainty Surrounding Appellate Filing Deadline appeared first on Washington Legal Foundation.

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