The Solicitor General’s Brief In Fosamax – An End To Levine Preemption?

I’ve written many times before about the Supreme Court’s opinion Wyeth v. Levine, 555 U.S. 555 (2009), such as when the opinion came out in 2009 and when opioid manufacturers tried to use it and related preemption case law to stop the cases filed against them. Levine is by and large a good case: the Supreme Court held that, when a drug manufacturer fails to warn patients about the real harms of their drugs and injured patients bring lawsuits, the drug manufacturer can’t blame the FDA for the problem (for having approved the drugs) and demand the court throw out ... Continue Reading

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DNC Lawsuit Part 2: U.S. Intervention, Mueller, Free Speech, And The End-Game

  My prior post went through the basics of the DNC Lawsuit against Russia, the Trump campaign, Wikileaks, and the individuals affiliated with each of them, specifically: Why Now Why The Complaint Alleges Those Causes Of Action Whether Russia And Its Agents Have “Sovereign Immunity” The “Plausibility” Pleading Requirement For The Case To Go Forward Today we’ll follow up with four big-picture issues: The Potential Role Of The U.S. Government The Role Of Parallel Criminal Prosecutions The First Amendment Issues What This Lawsuit Can Actually Accomplish V. The Potential Role Of The U.S. Government     My prior post talked ... Continue Reading

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The Who, What, Where, When, & Why of the DNC Lawsuit

  Earlier today, the Democratic National Committee filed a massive lawsuit against almost everyone arguably associated with the hack on the DNC’s servers, including the Russian Federation, Russia's foreign military intelligence agency (GRU), the hacker known as "Guccifer 2.0," Wikileaks, Donald J. Trump for President, Inc., Donald Trump, Jr., Jared Kushner, Roger Stone, and others who have been, in press reports or in filings from the Special Counsel, alleged to have served as conduits between Russia and the Trump campaign. (Notably, Donald Trump was not himself named.) The complaint raises a host of claims ranging from the Computer Fraud & ... Continue Reading

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Sexual Harassment And The Enforcement Of Non-Disclosure Agreements

    Sparked by the #MeToo movement, several legislatures (including Pennsylvania, California, and New York) are considering prohibiting employers from including non-disclosure agreements (NDAs) and confidentiality clauses in the settlement of sexual harassment claims. It’s not hard to see why: to take just one example, the gold-medal-winning gymnast McKayla Maroney could potentially have to pay USA Gymnastics $100,000 if she testifies at the sexual abuse sentencing hearing of her former coach because, in December 2016, she agreed to a settlement that included a non-disclosure agreement. Other examples show how these agreements enable sexual predators: Zelda Perkins, Harvey Weinstein’s assistant, was ... Continue Reading

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The Opioid Crisis, The Courts, And The Chamber of Commerce

On Sunday, the Washington Post published a detailed investigative report about how the drug industry snuck through Congress a bill that ruined one of the Drug Enforcement Agency’s key tools in the fight against the opioid epidemic. The DEA’s own chief administrative judge, John Mulrooney, has a forthcoming law review article about how the new law made it “all but logically impossible” for the DEA to stop drug manufacturers and distributors from dumping opioids out onto the streets, even when they are doing so in obvious violation of federal law.       That outrageous bill is just one part ... Continue Reading

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Equifax And The Long Legal Road In Data Breach Class Actions

    Equifax, which knows more about you than your own mother, (1) failed to maintain its servers, (2) was hacked and lost sensitive personal data for 143 million people, (3) concealed that fact for months, (4) blamed another company for the problem, then (5) finally admitted it caused the problem. To make matters worse, after the hack but before disclosing it, three executives sold off nearly $2 million in Equifax stock.       “What should I do to protect myself?” is a difficult question to answer. The Federal Trade Commission put up a page recommending checking your credit ... Continue Reading

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A Plaintiff’s Guide To Fed.R.Civ.P. 26 Discovery Proportionality

    Civil litigators often spend more time in discovery disputes than in trials. Few plaintiffs or defendants are keen on spending time in a deposition, collecting documents, or handing over to their opponent evidence that could be used against them later. Yet, as the Supreme Court said 70 years ago while interpreting the original Rules of Civil Procedure, “[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.”[1]       In December 2015, the ... Continue Reading

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Daubert In Product Liability Cases: Mid-2017 Update

  I’ve written about the Supreme Court’s Daubert opinion many times before, tagging it with the label “junk science.” The phrase “junk science” never actually appeared in Daubert, but rooting it out has been the animating concern behind the application of Daubert. See, e.g., Amorgianos v. National RR Passenger Corp., 303 F. 3d 256, 267 (2nd Cir., 2002)(“The flexible Daubert inquiry gives the district court the discretion needed to ensure that the courtroom door remains closed to junk science while admitting reliable expert testimony that will assist the trier of fact.”)       In federal courts today, Daubert has ... Continue Reading

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Free Speech And Trump Tweets: When Twitter Is A Limited Public Forum

[Update, May 23, 2018: As I predicted almost a year ago, before the lawsuit was even filed, Trump's twitter feed is indeed a public forum. A federal district court just denied his motion to dismiss. I haven't read it in full yet, but I'll update this post when I've had a chance.]       [Update, June 6, 2017: A week after I wrote the below, the Knight Institute wrote a letter to President Trump arguing the same. Eugene Volokh says there's a "private capacity" argument. I addressed that below, the same way the Davison court ruled on it. Moreover, ... Continue Reading

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Goodyear v. Haeger: The Supreme Court Muddles Sanctions Law Again

Earlier this month the Supreme Court decided Goodyear Tire & Rubber Co. v. Haeger et al., a case I wrote about way back in 2012 involving the scope of sanctions (including attorney’s fees) available when a party to a lawsuit brazenly lies about important evidence throughout most of the case.       The case involves a tire defect lawsuit and the extraordinary lengths to which the defendant, Goodyear, went to hide evidence of its culpability.       These are the underlying facts: the Haeger’s motorhome swerved and flipped over when one of the Goodyear G159 tires blew out. ... Continue Reading

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