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Updated: 2 hours 18 min ago

The Eleventh Circuit Limits the FTC’s Authority to Challenge Practices as “Unfair”

8 hours 23 min ago
Featured Expert Column: Antitrust & Competition Policy — Federal Trade Commission By M. Sean Royall and Richard H. Cunningham, Partners with Gibson, Dunn & Crutcher LLP, and Bennett Rawicki, Associate Attorney, all in the firm’s Dallas, TX office. The U.S. Court of Appeals for the Eleventh Circuit’s recent LabMD, Inc. v. FTC decision imposes significant …

Continue reading The Eleventh Circuit Limits the FTC’s Authority to Challenge Practices as “Unfair”

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Commerce-Clause Challenge over Washington Coal-Export Terminal Overcomes First Hurdle

Tue, 06/19/2018 - 3:15pm
In a March commentary, we appraised a legal challenge filed by two companies involved in the mining and delivery of coal against several Washington state officials for their role in blocking approval of a water-port terminal in Longview, Washington. The suit, which has attracted amici curiae briefs from neighboring states and other interested parties, took …

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Thanks to the Court, Justice Done in AT&T/Time Warner Merger Challenge

Tue, 06/19/2018 - 8:56am
Our nation’s federal prosecutors recommend themselves as dispassionate champions of the law. As then-Attorney General Robert Jackson put it: “Although the government technically loses a case, it has really won if justice has been done.” The government, he said, should seek “truth and not victims.” The United States’ top lawyers repeat these sentiments often. For …

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Trio of Soda Cases Test the Limits of Attorney-Driven Class Action Lawsuits

Mon, 06/18/2018 - 4:52pm
Guest Commentary By Jeffrey B. Margulies, Partner-in-Charge of the Los Angeles, CA office of Norton Rose Fulbright US LLP. The approach of many plaintiff consumer class-action lawyers is not difficult to discern: Concoct a factual theory to support a claim under California’s consumer-friendly laws that survives a motion to dismiss and a motion for class …

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Court Ruling Casts Constitutional Doubt on State and City Salary-Inquiry Bans

Tue, 06/12/2018 - 12:22pm
By Marc Dib, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering his third year at Texas Tech University School of Law in the fall. What did you make at your last job? If you have ever had a job interview, then you’ve likely encountered that question. Employers use this …

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Fourth Circuit Exacerbates Court Split Over Clean Water Act’s Jurisdictional Reach

Wed, 06/06/2018 - 12:31pm
Featured Expert Contributor, Environmental Law and Policy Samuel B. Boxerman, Sidley Austin LLP In a recent decision, Upstate Forever v. Kinder Morgan Energy Partners, L.P., Case No. 17-1640 (4th Cir. Apr. 12, 2018), a panel of the U.S. Court of Appeals for the Fourth Circuit held that federal Clean Water Act (“CWA” or “Act”) jurisdiction …

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DOJ Issues New Guidance to Avoid “Piling On” in Corporate Enforcement Actions

Tue, 06/05/2018 - 1:30pm
Featured Expert Contributor, White Collar Crime & Corporate Compliance Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC. *Ed. Note: This is Greg’s inaugural commentary as a featured expert contributor. Greg is a member of WLF’s Legal Policy Advisory Board, and has extensive experience in law …

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How the SEC Can Be a Better Lifeguard: Commissioner Peirce’s Insightful Comments on Regulators’ Role in a Sea of FinTech Innovation

Thu, 05/31/2018 - 2:23pm
Guest Commentary By Daniel S. Alter, a Shareholder in the New York office of Murphy & McGonigle P.C. and a former general counsel for the New York State Department of Financial Services. Earlier this month, Securities and Exchange Commission (SEC) Commissioner Hester M. Peirce addressed a FinTech conference hosted by the Medici Project, which is …

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Monkey Selfie Update: 9th Circuit Judge Calls for En Banc Rehearing Vote on Ruling

Wed, 05/30/2018 - 9:38am
Two weeks ago, we posted a commentary on the so-called monkey selfie case decided by the U.S. Court of Appeals for the Ninth Circuit, Naruto v. Slater. The court unanimously held that Naruto, a photogenic Indonesian macaque, did not have statutory standing to sue the owner of the selfie-taking camera for copyright infringement. The majority …

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The Supreme Court’s “Epic Systems” Decision: Holdings and Hints on “Chevron” Deference

Tue, 05/29/2018 - 9:11am
Guest Commentary By Arthur G. Sapper, Senior Counsel with Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in its Washington, DC office, where he practices both appellate litigation and administrative law, with an emphasis on OSHA matters. The U.S. Supreme Court’s decision in Epic Systems Corporation v. Lewis will likely prove important on issues other than …

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Neither Reason nor Science Supports Class Actions against Diet Soda Makers

Fri, 05/25/2018 - 10:26am
  A Food Court Follies Analysis No doubt, many a diet soda will be consumed this weekend. Will any of those consumers, though, purchase that soda—in reliance on the manufacturers’ devious use of “diet”—because they think it will assist in weight loss? That impression is the basis of a number of copycat consumer class-action lawsuits …

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Update: Federal District Court Rejects Minority View on Pharma “Innovator Liability”

Thu, 05/24/2018 - 2:05pm
In a recent post, West Virginia’s High Court Rejects Novel Theory of “Innovator Liability”, WLF Senior Litigation Counsel Cory Andrews discussed a state court decision that declined liability on a pharmaceutical manufacturer for alleged harms caused by a drug it did not produce. In doing so, the West Virginia Supreme Court of Appeals parted company with …

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California Supreme Court Limits Employers’ Ability to Characterize Workers as Independent Contractors

Thu, 05/24/2018 - 9:00am
Guest Commentary By John F. Querio, a Partner, and Lacey L. Estudillo, an Appellate Fellow, with Horvitz & Levy LLP. California courts and administrative agencies have long used a multi-factor common-law test, as summarized by S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989), to determine whether workers are …

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West Virginia’s High Court Rejects Novel Theory of “Innovator Liability”

Wed, 05/23/2018 - 1:03pm
Should the law recognize a plaintiff’s tort claims against a branded drug manufacturer when the drug that allegedly caused the plaintiff’s injuries was manufactured and sold by the defendant’s generic competitor? State and federal courts have been grappling with this novel question of “innovator liability” ever since the U.S. Supreme Court held, in Pliva and …

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Update: Ninth Circuit Softens its Decision in Flushable Wipes Case

Tue, 05/22/2018 - 12:30pm
Guest Commentary By Lucía Roibal, an Associate with Morrison & Foerster LLP in the firm’s San Francisco, CA office. This commentary is reposted with permission, originally appearing on May 17, 2018 in the firm’s Class Dismissed  blog. On May 9, 2018, the U.S. Court of Appeals for the Ninth Circuit issued an Opinion amending its previous …

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Solicitor General Inveighs Against Antitrust-Law Revolution in SCOTUS “Apple v. Pepper” Amicus Brief

Tue, 05/22/2018 - 10:24am
Ed. Note: With this post we welcome WLF’s newest attorney, Corbin K. Barthold, as a WLF Legal Pulse author. Many legal disputes pit the affective and sometimes utopian thinking of lawyers against the statistical and efficiency-oriented thinking of economists. The archetypal lawyer subscribes to the maxim ubi jus ibi remedium—“where there is a right, there …

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A Class-Action Paradise: Legal Environment in California Encourages Frivolous Claims

Mon, 05/21/2018 - 4:03pm
A Food Court Follies Analysis California: the land of beaches, Hollywood, and lawsuits.  A land where dreams can come true and where plaintiff-friendly statutes and forgiving federal judges allow consumer class actions to reign supreme.  Here on the WLF Legal Pulse, we have previously blogged on series of cases filed in California in which consumers …

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Circuit Split Grows over Whether Evidence Supportive of Class Certification Must be Admissible

Fri, 05/18/2018 - 10:14am
Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence By Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP. The Supreme Court explained in Wal-Mart Stores, Inc. v. Dukes that “Rule 23 does not set forth a mere pleading standard.  A party …

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U.S. Supreme Court to Settle Circuit Split on “Bare Metal Rule” Frequently Invoked in Asbestos Suits

Wed, 05/16/2018 - 11:37am
Featured Expert Contributor, Mass Torts—Asbestos Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA On May 14, 2018 the United States Supreme Court agreed to decide a recurring issue in asbestos actions, the “bare-metal” rule.  The Supreme Court granted the petition for writ of certiorari of four businesses that often …

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“Monkey Selfie” Copyright Ruling Reflects Key Appeals Court’s Wayward Standing-to-Sue Jurisprudence

Tue, 05/15/2018 - 12:14pm
We’ve been on a bit of a standing-to-sue kick in this space lately (here, and here, for instance) and in Washington Legal Foundation’s publishing program (here and here). Article III’s standing requirement, the U.S. Supreme Court has explained, is “built on separation-of-powers principles” and “serves to prevent the judicial process from being used to usurp …

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