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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DRI-The Voice of the Defense Bar Files Supreme Court Amicus Brief on Protection of Confidential Business Information

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Lawrence S. Ebner filed in the U.S. Supreme Court a certiorari-stage amicus curiae brief on behalf of DRI-The Voice of the Defense Bar in FCA US LLC v. The Center For Auto Safety, No. 15-1211, urging the Court to establish a nationally uniform “good cause” standard for averting the unsealing of court-filed discovery documents containing confidential business

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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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Strategic Use of Amicus Briefs in Appellate Advocacy

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On April 19, 2016, Larry Ebner, along with Robin Conrad, Averil Rothrock, and M.C. Sungaila, presented a Strafford webinar on amiucs brief strategy, preparation, and procedures in the U.S. Supreme Court, federal courts of appeals, and state appellate courts.  

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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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Four Decades of U.S. EPA Review and Continuous Federal Registration of Creosote

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For almost 70 years, coal tar-derived creosote has been federally registered for use as a wood preservative. During the past 40 years, the risks and benefits of creosote, like those of other major industrial wood preservatives, have been reevaluated by U.S. EPA in three successive and comprehensive review processes—Special Review, Reregistration Review, and currently, Registration

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