Preemption

News & Analysis as of

Arizona Supreme Court Limits Preemptive Sweep of Arizona’s Trade Secrets Act

The Arizona Supreme Court decided yesterday in Orca Communications Unlimited v. Noder that Arizona’s version of the Uniform Trade Secrets Act, A.R.S. § 44-401 et seq., does not preempt common law tort claims for...more

Arizona Trade Secrets Grow New Teeth

Over the last 18 months, the courts had diluted Arizona trade secret protections, notwithstanding the recent criminalization of trade secret theft by the AZ legislature. Today, however, the Arizona Supreme Court breathed new...more

Federal Preemption May Be The Key For Calif. Railroads

Railroad operators across the U.S. are seeing a bright future due to the resurgence in freight rail traffic. Intermodal (i.e., cargo container) shipping is booming. In 2013, intermodal volume on the major railroads totaled...more

RE: Bakken Crude-by-Rail: Environmental Groups Ask New York State to Regulate DOT-111 Tank Cars

A recent state-law challenge by environmental groups to an aspect of crude-by-rail transportation has teed up the question of federal supremacy over railroad regulation. Because federal law generally preempts state regulation...more

A Recent State Supreme Court Ruling Opens the Door for Breach of Privacy Claims Against Health Care Providers

It has long been established that there was no private right of action with regard to HIPAA. All providers must be aware that state courts are beginning to turn the tide regarding such liability. On November 11, 2014, the...more

Health Law Wire: Expanding HIPAA Liability for Healthcare Providers (11/14)

The Health Insurance Portability and Accountability Act (HIPAA), while requiring protected health information be kept private, does not provide for a private right of action based on a HIPAA violation. Rather, an individual...more

Connecticut Supreme Court Recognizes Right to Sue for Negligence Using HIPAA as Standard of Care

In a decision released November 11, 2014, the Connecticut Supreme Court reversed the judgment of the trial court and held for the first time in Connecticut that (1) HIPAA does not preempt state common law claims for...more

Beveridge & Diamond Wins Preemption Decision in Washington State Court of Appeals

Appellate litigators in Beveridge & Diamond’s District of Columbia office, working with the Washington Department of Ecology, secured a unanimous decision from the Washington Court of Appeals striking down a county ban on...more

“Frac Free Denton” Faces Legal Fight

On November 4, 2014, Denton, Texas, became the first Texas city to vote to ban fracking within city limits, as covered by Reuters, the Star-Telegram, and The Wall Street Journal. The ballot initiative, which passed with just...more

"Generic" Logic Helps Branded Drug Achieve Dismissal

A federal district court has held that design defect claims against a brand pharmaceutical manufacturer are preempted by federal law. Booker v. Johnson & Johnson, No. 3:12 oe 40000, 2014 WL 5113305 (N.D. Ohio Oct. 10,...more

Vijay v. Twentieth Century Fox Film Corp. - USDC, C.D. California, October 27, 2014

Vijay v. Twentieth Century Fox Film Corp. - USDC, C.D. California, October 27, 2014: District court declines to find that preemption warrants dismissal of all claims brought by actor in “Titanic,” but grants...more

FAAAA Does Not Preempt California Meal and Rest Period Requirements

In Godfrey v, Oakland Port Services Corp., which was decided on October 28, 2014, the California Court of Appeal issued a published decision holding that the Federal Aviation Administration Authorization Act of 1994 (FAAAA)...more

Kentucky Federal Court Holds Tort Claims Not Preempted by Clean Air Act

State common law tort claims based on air emissions from a power plant are not preempted by the federal Clean Air Act (CAA), according to the U.S. District Court for the Western District of Kentucky. The court agreed to...more

After Alice: Patent Eligibility Considerations for All Technology Inventors

The technological advances of post-WWII America spurred the growth of patenting of modern technology. From chemicals to useful bacteria, and from petroleum derivatives to computer chips, many of the inventions that are now a...more

Can State Medical Marijuana Laws Trump Employer Rights?

Currently, 23 states and the District of Columbia have medical marijuana laws which allow a lawful level of marijuana use. One question which comes up often in such states is whether an employer can lawfully terminate an...more

FCRA Preempts Tortious Interference Claim, Says NJ Court

The Fair Credit Reporting Act (FCRA)—a federal law that regulates the collection and use of “consumer information”—covers employers who solicit third-party vendors known as consumer reporting agencies (CRAs) to run background...more

Immigration Law Does Not Preempt State Wage and Hour Claims, Says Court

In case there was any question, an Indiana staffing company, Access Therapies, learned late last month that the Immigration and Nationality Act (INA) does not absolve employers of their responsibilities under state wage and...more

First Circuit Favors Broad Application of Analogue to Airline Deregulation Act Preemption Provision

On September 30, 2014, in Massachusetts Delivery Association v. Coakley, No. 13-2307 (September 30, 2014), the First Circuit Court of Appeals overturned a lower court’s refusal to preempt a Massachusetts independent...more

ERISA’s “Overlapping Fields of Fire” Preempt Wisconsin’s Family and Medical Leave Act

Wisconsin’s Family and Medical Leave Act (“WFMLA”), requires that employers allow employees six weeks of unpaid leave following “[t]he birth of an employee’s natural child,” and that employers allow an employee to substitute...more

First District Holds CEQA’s Application To Public Agency’s Approval of Railroad Operations Is Preempted By Federal Law Despite...

The North Coast Railroad Authority (NCRA), a public agency established by state law, contracted with Northwestern Pacific Railroad Company (NWPRC) to allow NWPRC to conduct freight services on tracks controlled by NCRA....more

CEQA Alert: CEQA Does Not Apply to Approval of Proposed Railroad Operations – Express Preemption by ICCTA

California’s First Appellate District has held that federal law preempts CEQA’s application to the approval of proposed railroad operations. Although this was an issue of first impression for a California appellate court,...more

Flash No. 43 - A Favorable Decision Regarding the Massachusetts "ABC" Test

The saga surrounding the challenges to the Massachusetts “ABC” Test for independent contractors has taken a potentially positive turn for the transportation industry. A decision issued by the U.S. Court of Appeals for the...more

Federal Law Governing Foreign Risk Retention Groups Preempts State Law That Prohibits Mandatory Arbitration Clauses In Insurance...

The Nebraska Supreme Court has held that Nebraska’s statute prohibiting mandatory arbitration clauses in insurance policies is preempted by the Liability Risk Retention Act of 1986 (LRRA). At issue was a professional...more

Reg A+ Debate Continues

The debate regarding state preemption for Tier 2 Regulation A+ offerings appears to continue. Late last week, a group of Congressmen sent a letter to SEC Chair White reaffirming their view that the SEC has authority to...more

Health Plans Petition the Supreme Court to Determine Whether FEHBA Preempts State Anti-Subrogation Statutes

The Federal Employees Health Benefit Act (FEHBA) governs federal employee health plans and contains a broad preemption clause comparable to the one found in ERISA.1 Despite the similarity, state and federal courts are split...more

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