Supreme Court Punts On Another Federal Preemption Product-Liability Conundrum

Commentary, Federal Preemption, US Supreme Court /

What do prescription drugs, motor boats, pesticides, automobiles, medical devices, locomotives, cigarettes, vaccines, and oil tankers have in common?  During the past 25 years, each has been the subject of at least one Supreme Court opinion concerning federal preemption of state-law product liability claims.  No uniform rule has emerged from those opinions (e.g., there is […]

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Justices Should Consider Harm To Qui Tam Defendants

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The unresolved question debated at the November 1 U.S. Supreme Court hearing in State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, No. 15-513, involves the standard for dismissing a False Claims Act qui tam suit where the relator (i.e., whistleblower plaintiff), or the relator’s attorney, willfully violates the statute’s mandatory seal

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Abu Ghraib Contractor Still Faces Potential Tort Liability for Alleged Detainee Abuse

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The Iraq War is still being fought, but in the federal courts rather than on foreign battlefields.  On October 21, 2016, a panel of the U.S. Court of Appeals for the Fourth Circuit issued what is probably the most refined and nuanced opinion of any federal court on the question of whether the political question

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Text Trumps Policy in Supreme Court False Claims Act “Implied Certification” Decision

Commentary, US Supreme Court /

The Supreme Court’s opinion in Universal Health Services, Inc. v. United States ex rel. Escobar, No. 15-7 (June 16, 2016), will trigger weeks of commentary, months of debate, and years of litigation on how courts should apply the “implied false certification theory” of False Claims Act liability. But as discussed below, I believe that there

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Labor Department “Switcheroo” Gets No Respect From Supreme Court

Commentary, US Supreme Court /

According to Webster’s, a “switcheroo” is “an unexpected reversal or change.”  When a federal department or agency pulls a switcheroo on the public or an industry by abruptly reversing a long-held interpretation of a key statutory phrase, there can be serious economic or other consequences for those who are affected.  In an opinion issued on

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Justices Reject U.S. Attempt To Muddy The Waters On “Finality”

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The federal Administrative Procedure Act (“APA”), 5 U.S.C. § 704, authorizes companies or individuals to obtain judicial review when they are aggrieved by “final agency action.” This long-standing statutory right to go to court to challenge final actions by federal departments and agencies is sacrosanct among federally regulated industries and companies. In a unanimous decision

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Spokeo “Standing” Ruling Not Cast In Concrete

Commentary, US Supreme Court /

In a much anticipated decision, the Supreme Court held today in Spokeo, Inc. v. Robins, No. 13-1339, that alleging a “bare procedural violation” of a federal statute may not be enough to confer a plaintiff with standing to sue. On the other hand, the Court’s 6-2 opinion, authored by Justice Alito, indicated that “the violation

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Is It Express? Is It Implied? Is It Preempted?

Commentary, Federal Preemption, US Supreme Court /

Every first-year law student learns the taxonomy of federal preemption principles: Although the Supreme Court’s Supremacy Clause cases frequently rely on this preemption lexicon, the Court long ago indicated that these categories are not “rigidly distinct.” English v. Gen. Elec. Co., 496 U.S. 72, 79 n.5 (1990). The Court’s April 19, 2016 opinion in Hughes

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Fourth Circuit Refines Rockwell Public-Disclosure Bar Analysis

Commentary, Federal Courts of Appeals /

In United States ex rel. Beauchamp v. ACADEMI Training Center, the U.S. Court of Appeals for the Fourth Circuit recently vacated dismissal of a False Claims Act (FCA) qui tam suit on the ground that the trial court improperly applied the Supreme Court’s holding in Rockwell International Corp. v. United States, 549 US 457 (2007).

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Can Congress Go Too Far in Preempting State Law ?

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Federal preemption aficionados will find today’s seemingly ho-hum Supreme Court decision in Gobielle v. Liberty Mutual Ins. Co. to be of considerable interest. The Court held that ERISA expressly preempts a Vermont statute requiring disclosure of ERISA-regulated health care plan payment information. According to Justice Thomas’ concurring opinion, ERISA “contains what may be the most

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