WLF Legal Pulse

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Updated: 2 hours 24 min ago

Perpetual Dual Class Stock versus the SEC’s Dubious Raised Eyebrow Power

Fri, 02/23/2018 - 9:00am
Featured Expert Contributor, Corporate Governance/Securities Law Stephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law. Newly confirmed SEC Commissioner Robert J. Jackson, Jr., gave his inaugural speech at Berkeley on February 15, 2018. In it, he criticized—in an admittedly nuanced way—the growing phenomenon of dual class stock. As he explained, …

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Another California Intrusion on Businesses’ Free Speech Fails in Court

Thu, 02/22/2018 - 3:14pm
For a state with cities like Berkeley, which birthed the Free Speech Movement 54 years ago, California’s record on respecting the First Amendment is surprisingly spotty. That is especially true for the expressive activities of businesses. The state, as well as its municipalities, often curtail businesses’ speech, or compel them to speak, as a way …

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Labor Issues in the Gig Economy: Federal Court Concludes That GrubHub Delivery Drivers are Independent Contractors under California Law

Tue, 02/20/2018 - 9:20am
Guest Commentary By Adam S. Forman, a Member in the Detroit, MI and Chicago, IL offices of Epstein Becker & Green, P.C., and Kevin D. Sullivan, an Associate in the firm’s Los Angeles, CA office. Ed. Note: Cross-posted with permission from the Wage and Hour Defense Blog. Epstein Becker Members Nathaniel Glasser and Stuart Gerson …

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Ninth Circuit Blows Limiting Principle on “Point Source” Out of Water with CWA Ruling

Fri, 02/16/2018 - 11:41am
Featured Expert Column – Environmental Law and Policy by Samuel B. Boxerman, Sidley Austin LLP with Ben Tannen, Sidley Austin LLP In a recent decision in Hawai’i Wildlife Fund v. Cty. of Maui, Case No. 15-17447 (9th Cir. Feb. 1, 2018), the U.S. Court of Appeals for the Ninth Circuit became the first federal circuit …

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New Slate of Commissioners Should Elevate FTC’s Consideration of the First Amendment

Tue, 02/13/2018 - 3:26pm
The U.S. Senate Committee on Commerce, Science, and Transportation has scheduled a hearing for tomorrow, February 14, 2018, on the nominations of a new Chairman and three new Commissioners to the Federal Trade Commission (FTC). In recent years, FTC has become the primary national regulator of consumer data privacy and security, a responsibility that accords …

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When Assessing Burdens for Farmers, Other Landowners, White House Shouldn’t Duck Overhaul of Wetlands Regulatory Juggernaut

Fri, 02/09/2018 - 10:24am
Guest Commentary By Lawrence A. Kogan* Last year, two WLF Legal Pulse posts (here and here) explored the federal government’s incremental expansion of control over privately owned agricultural property through the Clean Water Act (CWA) and the law’s hydra-like oversight of wetlands. Those commentaries presented one Erie, Pennsylvania farmer’s 30-year legal battle as a microcosm …

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District Courts Divide over Application of “Bristol-Myers Squibb” Decision to Class Actions

Mon, 02/05/2018 - 4:28pm
Guest Commentary By Brian A. Troyer, a Partner with Thompson Hine LLP in its Cleveland, OH office. In a September 8, 2017 Washington Legal Foundation Legal Backgrounder on Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), I noted that it would remain to be determined how courts would apply it …

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DOJ Memo and Court Opinion Show Trend in Damming Flood of False Claims Act Suits

Thu, 02/01/2018 - 8:51am
Businesses that routinely contract with the government know that while the relationship comes with high financial rewards, it also can expose those companies to massive civil liability.  Under the False Claims Act (FCA), government contractors can find themselves sued for hundreds of millions of dollars based on mere technical violations of complex regulatory schemes. Luckily, …

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WLF Briefing Delves into 2018 Legal, Regulatory Challenges for “Internet of Things” Technology

Tue, 01/30/2018 - 12:36pm
This interactive discussion was moderated by H. Michael O’Brien of Wilson Elser and featured Julie Kearney of the Consumer Technology Association, James Trilling of the Federal Trade Commission, and Courtney Stevens Young of Medmarc Insurance Group.
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Cutting the Cord: “Smart TV Box” Devices and Copyright Infringement

Tue, 01/30/2018 - 12:15pm
Innovative ways to view broadcast content such as scripted shows, sporting events, and recently released movies are advancing at breakneck speed. Buyers should beware, however, that not all methods for accessing entertainment content are on the up-and-up. Several devices, for instance, promise extreme “cord-cutting” and incredibly wide access to content at a relatively low, one-time …

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California Municipalities’ Climate-Change Litigation Against Energy Companies Takes a Surprising New Turn

Fri, 01/26/2018 - 11:14am
Guest Commentary By Andrew R. Varcoe, Boyden Gray & Associates, PLLC* In recent years, some environmentalists and their political allies have pursued aggressive lawsuits and investigations as part of an effort to change public policy on climate change. These activities include civil lawsuits that some California municipalities brought last year, seeking compensation from energy companies …

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On Issue of First Impression, Fifth Circuit Applies CAFA in Mass-Tort Cases to Deny Remand

Thu, 01/25/2018 - 11:06am
Featured Expert Contributor—Civil Justice/Class Actions By Frank Cruz-Alvarez, a Partner with Shook, Hardy & Bacon L.L.P. in the firm’s Miami, FL office, with Erica E. McCabe, an Associate in the firm’s Kansas City, MO office. On January 9, 2018, the U.S. Court of Appeals for the Fifth Circuit, in the consolidated interlocutory appeals of Warren …

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“Big Coffee” Wins Another One in the Food Court

Wed, 01/24/2018 - 1:32pm
Food Court Follies—A WLF Legal Pulse Feature Without Jerry Seinfeld’s litigious (and fictional) attorney Jackie Chiles on the case, Siera Strumlauf and her co-plaintiffs did not stand a chance in California’s Food Court (the Northern District of California) in her “latte fraud” lawsuit. Judge Yvonne Gonzalez Rogers granted Starbucks’ motion for summary judgment in Strumlauf, …

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U.S. Supreme Court Agrees to Review Endangered Species Act Case

Mon, 01/22/2018 - 12:15pm
Can the U.S. government designate a private landowner’s property as “critical habitat” for a threatened or endangered species if the species does not currently inhabit the land and could not do so unless the property owner agrees to modifications of his land? The U.S. Supreme Court agreed this morning to address those questions by granting …

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The Supreme Court’s “American Express” Antitrust Case: What’s at Stake

Thu, 01/18/2018 - 10:56am
Featured Expert Column: Antitrust & Competition Policy — U.S. Department of Justice By Anthony W. Swisher, a Partner in the Washington, DC office of Squire Patton Boggs (US) LLP. With the New Year comes the opportunity to consider the cases to the U.S. Supreme Court will hear in the second half of its October Term …

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Restate or Rewrite?: Stark Choice Faces ALI Leaders on Liability Insurance Law Project

Tue, 01/16/2018 - 9:58am
The debate over the American Law Institute’s (ALI) still ongoing Restatement of the Law: Liability Insurance (RLLI) project the mythical struggles of Sisyphus. Since 2015, when ALI—in unprecedented fashion—shifted the venture from an aspirational “Principles Project” to a Restatement, stakeholders and a growing number of third parties concerned with the project’s direction have been pushing …

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Influencer Marketing Remains in FTC’s Crosshairs

Wed, 01/10/2018 - 12:16pm
Featured Expert Column: Antitrust & Competition Policy — Federal Trade Commission By M. Sean Royall, a Partner with Gibson, Dunn & Crutcher LLP, with Richard H. Cunningham, Of Counsel in the firm’s Denver, CO office. The authors would like to thank Philip Jacob Spear, who is also an associate in Gibson Dunn’s Dallas office, for his substantial …

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Textbook Application of “Obstacle” Preemption Negates Activists’ Organic Food-Labeling Suit

Tue, 01/09/2018 - 12:05pm
Food Court Follies—A WLF Legal Pulse Feature Several of our recent commentaries (here and here) have extolled the virtues of national uniformity for the regulation of interstate commerce. Those posts focused on litigation involving federally regulated prescription drugs and devices. But state consumer-protection litigation poses an even greater threat to regulatory uniformity. Federal preemption—the constitutional …

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Update: Ninth Circuit Issues First Amendment Ruling on Credit-Card Surcharge Law

Fri, 01/05/2018 - 4:19pm
A post last month, Second Circuit Improperly Ducks Important First Amendment Issues, criticized the U.S. Court of Appeals for the Second Circuit’s decision to certify a question to New York’s highest court in a challenge to a state law restricting merchants’ ability to inform their customers of credit-card surcharges. WLF Chief Counsel Richard Samp argued that …

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Same-Old Drug Advertising Ban Proposal Would Fail for the Same-Old Reasons

Thu, 01/04/2018 - 1:23pm
As the country debates the best path forward for the nation’s healthcare system, interest groups continue to advance different ideas to address their pet causes.  One popular cause is the reduction of drug prices.  Though that debate often occurs based on narrow perceptions of the dollar figures at issue, ideas for price reduction are worthy …

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