Administrative Law › Conflict of Laws

Compounding Animal Drugs from Bulk Ingredients

Recent public discussion about the federal role in regulating compounding pharmacies has focused on compounded drugs for human use. Compounded drugs are also vital to companion animal health (like pets). In the world of...more

Ninth Circuit Vacates Restitution Order In Overdraft Ordering Case, Allows State Fraud Claims To Proceed

On December 26, the U.S. Court of Appeals for the Ninth Circuit held that a national bank’s practice of posting payments to checking accounts in a particular order is a federally authorized pricing decision, and that federal...more

FAAAA Preemption Continues to Zigzag Through California Courts

Federal preemption of California’s meal and rest break laws as applicable to truck drivers under the Federal Aviation Administration Authorization Act (the FAAAA) continues to zigzag through California’s federal courts. In...more

Marijuana Officially Legal but States Await Feds’ Reaction

Marijuana stores in Colorado and Washington won’t be open for at least a year, but new laws legalizing the drug Marijuana pipe on its sidetook full effect in both states this month. Washington’s Initiative 502 kicked in on...more

Medical Marijuana Dispensaries Are Now Operating in Arizona

On December 3, 2012, an Arizona Superior Court judge issued an order holding that the federal Controlled Substances Act (CSA) does not preempt the Arizona Medical Marijuana Act. Three days later, the first medical marijuana...more

Khasin v. Hershey: Unduly Narrowing the Preemptive Scope of Pom Wonderful

As we have briefly explored, the Ninth Circuit has broadly construed Buckman implied preemption of state law claims pertaining to food, drugs, and medical devices, which are regulated under the federal Food, Drug, and...more

State Common Law Carbon Dioxide Liability Claims: Premonitions of Preemption (and Dismissal)

Left open by the Supreme Court’s decision in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011), was the question of whether state law nuisance claims for the emission of carbon dioxide were viable in the...more

Federal Circuit Holds the Reexamination Door Open in In Re Baxter

When the Federal Circuit denied the Request for Panel Rehearing and Rehearing en banc in In re Baxter, the court let stand its two decisions that affirmed conflicting rulings on the validity of the same patent....more

Sixth Circuit: FERA False Claims Act Amendment Applies Retroactively to Cases Pending as of June 7, 2008

On November 2, 2012, the Sixth Circuit held that a 2009 amendment Congress made to the liability provisions of the False Claims Act ("FCA") applies retroactively to civil FCA cases pending as of June 7, 2008. U.S. ex rel....more

Lead Agency Could Not Bypass CEQA Review By Adopting A Voter-Sponsored Initiative As An Ordinance Instead Of Placing The...

A court of appeal created a split of authority when it ruled that California Environmental Quality Act (“CEQA”) review was necessary when a city approved a project, by adopting as an ordinance, an initiative petition that...more

The Fight Isn’t Over: Employers Should Keep Battling The Definition of “Whistleblower” Under Dodd-Frank

The “Securities Whistleblower Incentives and Protection” section of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“DFA”) is an integrated scheme designed to encourage individuals to complain to the...more

Appeals Court Rules on State Immigration Laws in Alabama and Georgia

In three separate decisions issued on August 20, 2012, the Eleventh Circuit Court of Appeals, applying the U.S. Supreme Court’s decision in Arizona v. United States, held that key provisions of state immigration laws passed...more

NH Supreme Court Rules That State Law Preempts Municipal Restrictions on Excavation Permitting

On November 9, 2012, the New Hampshire Supreme Court issued its decision in Town of Carroll v. Rines (“Rines”), invalidating certain municipal regulations that limited excavations....more

Rogers et al v SOCAN: W(h)ither the "Making Available" Right?

Among the unanswered questions arising in the wake of the massive changes to the Canadian copyright landscape in 2012 is the issue of precisely how the two seismic forces at work (i.e., The Copyright Modernization Act and the...more

Generic Drug Law Update -- November 2012: New Bill Seeks to Expand Manufacturers Post-Sale Pharmacovigilance Duties

Democratic legislators in both houses of Congress introduced legislation that seeks to reverse the U.S. Supreme Court’s recent decision in PLIVA, Inc. v. Mensing, 131 S.Ct. 2567 (2011), which bars state law tort suits against...more

Impossible and Useless CEQA Review Is Required If City Opts Under Elections Code to Adopt Legislative Project Approvals Proposed...

In a case notable for its unique conception of “meaningful discretion” for purposes of triggering CEQA review, the Fifth District Court of Appeal has created a split in authority that will undoubtedly require Supreme Court...more

Federal District Court Holds Ohio Post-Repossession Notice Requirements Not Preempted

On October 17, the U.S. District Court for the Northern District of Ohio held that the post-repossession notice requirements in the Ohio Retail Installment Sales Act (RISA) and the Ohio Uniform Commercial Code (OUCC) were not...more

ABA seeks broad CFPB preemption ruling

In August, the CFPB issued a notice seeking public comment on its plans to determine whether certain provisions of Maine and Tennessee laws relating to unclaimed gift cards are preempted by federal law on gift card expiration...more

Circuit Split: How Does the CFAA Apply to Employment Cases?

Imagine a disgruntled employee rummaging through your company’s confidential files and covertly stealing trade secrets to use as he builds a competing business. What recourse would you have against the rogue employee?...more

New York Court Holds That Federal Standards of Care Preempt State-Law Standards Governing Hiring, Training, and Retention of...

A New York state trial court recently added another voice to the chorus of cases finding that federal law preempts state-law standards of care in the field of aviation safety. In In re: Air Crash Near Clarence Center, New...more

Justice Scalia, Liberal Construction & The Finance Lenders Law

A few weeks ago, I purchased a copy of Reading Law: The Interpretation of Legal Texts by Justice Antonin Scalia and Bryan Garner. According to the cover, the authors “carefully and engagingly explain 57 valid canons of...more

Hall v. Sebelius

Brief of the CATO Institute as Amicus Curiae in Support of Petitioners

When Brian Hall, former House Majority Leader Dick Armey, and other over-65 retirees requested to opt out of Medicare's hospital insurance coverage (because they preferred their existing private coverage), the Social Security...more

D.R. Horton Decision on Class Action Waivers in Mandatory Arbitration Agreements Draws Decidedly Negative Reaction from Federal...

In January, we reported on the National Labor Relations Board’s (NLRB) controversial decision in D.R. Horton, Inc. and the broad implications that it had for both union and non-unionized workforces. The NLRB’s decision in...more

Indiana Joins the Emerging Majority Position on Uniform Trade Secrets Act Preemption of State-Law Tort Claims

Last month, an Indiana appellate court became the latest court to adopt the majority position on the question of whether the Uniform Trade Secrets Act (UTSA) displaces state-law tort claims said to protect information that is...more

District Court Rules District Must Fund Student’s Stay-Put Placement through Appeal to Circuit Court, Though District’s IEP...

When a dispute arises between parents and a district concerning the special education identification, evaluation, placement, or free appropriate public education (FAPE) of a student, the IDEA provides that the student will...more