Preemption

News & Analysis as of

Recent Surface Transportation Board Preemption Decisions of Note

In the last several months, the Surface Transportation Board (STB or Board) has issued a number of decisions further defining the scope of federal preemption. As the primary agency tasked with the economic regulation of the...more

Eleventh Circuit Holds That Defendant Cannot Be Precluded From Asserting Its Arbitration Rights Against Future Class Members

The Eleventh Circuit recently held that a district court lacked jurisdiction to determine, pre-certification, that a defendant’s waiver of its right to compel named plaintiffs to arbitrate their claims precluded it from...more

Freehand Line-Drawing in Affirmance of Huge Verdict in Children’s Motrin/TEN Case

A couple of days ago, we watched the lovely “St. Vincent.” The film stars a spot-on Bill Murray as Vincent, an unemployed curmudgeon living alone in an otherwise tidy residential neighborhood. Disrepair has turned Vincent’s...more

Supreme Court Finds No Pre-emption in Natural Gas Act Case

The U.S. Supreme Court recently held in ONEOK Inc. v. Learjet, Inc., that the Natural Gas Act (NGA) does not pre-empt state-law antitrust suits over manipulation of natural gas indices. The court’s decision has important...more

SEC Adopts Final Rules on Regulation A+

On March 25, 2015, the Securities and Exchange Commission (SEC) adopted final rules to amend Regulation A pursuant to the mandate under Title IV of the Jumpstart Our Business Startups Act (JOBS Act) that directed the SEC to...more

Onward to Trial: Federal Court Rejects Vermont’s Motion to Dismiss GMA Lawsuit

Despite a stiff litigation challenge from the food industry, Vermont’s GMO-labeling campaign marches on. This week saw major developments in the suit brought by the Grocery Manufacturers’ Association and other food industry...more

Antitrust & Competition Newsletter - April 2015

U.S. Supreme Court Holds That State Action Immunity Does Not Apply to State Boards If the Board Is Controlled by Active Market Participants - On Feb. 25, 2015, the U.S. Supreme Court held, in a 6-3 decision, that a state...more

Ray v. ESPN, Inc. - USCA, Eighth Circuit, April 22, 2015

Eighth Circuit affirms dismissal of professional wrestler’s state-law right of publicity claims arising from ESPN’s re-telecast of wrestling match footage as preempted by Copyright Act....more

Tomorrow is Another One-A-Day: FDA Guidelines Preempt Vitamin Claims, but Consumer Class Still Has Opportunity to Supplement

Although consumer class actions in California are dime-a-dozen, a recent Northern District of California case involving One A Day vitamins stands out because it demonstrates how federal regulations can preempt certain state...more

Energy Bulletin (US)

Transportation Department acts on safety issues regarding crude and ethanol shipped by rail. The US Department of Transportation on April 17 issued regulatory changes it believes will address “some of the issues...more

Supreme Court’s Holding in Oneok v. Learjet Could Lead to New Risks for Market Participants

On April 21, 2015, the Supreme Court decided Oneok v. Learjet, holding that “Respondents’ state-law antitrust claims are not within the field of matters pre-empted by the Natural Gas Act” even though the claimed violations...more

Supreme Court Preserves States' Power to Protect Consumers But in the Process Blurs Federal Preemption Analysis

The Supreme Court once again showed that, when it comes to the antitrust laws, the consumer is king. In Oneok, Inc. v. Learjet, the Court was asked to decide where state antitrust laws end and federal regulation begins. The...more

Recent Ninth Circuit Decisions in False Advertising Consumer Class Action Cases May Prevent Preemption and Relegate the Primary...

In two recent decisions, Reid v. Johnson & Johnson, __ F.3d __, Case No. 12-56726 (9th Cir. March 13, 2015) and Astiana v. The Hain Celestial Group, Inc., __ F.3d __, Case No. 12-17596 (9th Cir. April 10, 2015), the Ninth...more

April 2015: Product Liability Litigation Update

Defenses to Public Nuisance Claims in Pharmaceutical Products Litigation. For many years, plaintiffs have asserted the tort of nuisance to address purported harms from all sorts of products—including firearms, lead paint,...more

Justices Spar Over Pre-Emption as High Court Allows State Law Antitrust Claims to Proceed Against Interstate Pipelines

On April 21, 2015, in a 7-2 decision authored by Justice Breyer, the U.S. Supreme Court ruled that state law antitrust claims brought against interstate pipeline companies by a group of manufacturers and other retail buyers...more

Supreme Court Rejects Pre-Emption Claim in State Antitrust Action

On April 21, 2015, the Supreme Court issued a divided opinion declining to find federal pre-emption by the Natural Gas Act (NGA) of certain state antitrust claims. In Oneok, Inc. v. Learjet, Inc., a group of manufacturers,...more

Justices Spar Over Pre-Emption as High Court Allows State Law Antitrust Claims to Proceed Against Interstate Pipelines

The recent 7-2 U.S. Supreme Court decision in Oneok, Inc. et al. v. Learjet, Inc. et al. ruled that state law antitrust claims brought against interstate pipeline companies by a group of manufacturers and other retail buyers...more

Supreme Court Update: Rodriguez v. United States (13-9972); United States v. Wong (13-1074 And 13-7075); Oneok, Inc. v. Learjet,...

When is a sniff not up to snuff (as far as the Fourth Amendment is concerned)? Ten years ago, in Illinois v. Caballes (2005), the Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth...more

ONEOK, Inc. v. Learjet, Inc.: The Supreme Court Holds that Natural Gas Jurisdictional Sellers are Subject to State Antitrust...

On April 21, 2015, the Supreme Court issued its much-anticipated decision in ONEOK Inc. v. Learjet, Inc. addressing the extent to which the Natural Gas Act (“NGA”) preempts state antitrust claims brought against...more

Is The Presumption Against Preemption Dead?

We’ve got the expression “the dog that didn’t bark” stuck in our heads today, and it’s not just from that phrase being used in the rececnt Caplinger decision. See Caplinger v. Medtronic, Inc., ___ F.3d ___, 2015 WL 1786742,...more

Seventh Circuit Affirms Dismissal of EU 261 Claims - Direct Claims Under EU 261 Are Only Actionable in EU Member States

The ruling by the U.S. Court of Appeals for the Seventh Circuit in Volodarskiy v. Delta Airlines, Inc. follows numerous District Court opinions holding that EU 261 does not provide a right of action enforceable outside the EU...more

SCOTUS Holds Natural Gas Act Does Not Preempt State Law Antitrust Claims

In Oneok, Inc. v. Learjet, Inc., Case No. 13-271 (Apr. 21, 2015), the U.S. Supreme Court held that the Natural Gas Act did not preempt retail customers’ state law antitrust claims against interstate gas pipeline operators for...more

Supreme Court Rejects FERC’s Preemption Argument and Permits State Antitrust Claims Against Interstate Pipelines to Proceed

On April 21, the U.S. Supreme Court issued an opinion in ONEOK, Inc., et al., v. Learjet, Inc. et al holding that state antitrust claims are not pre-empted by the Natural Gas Act. This important decision put the brakes on an...more

Data Security and Breach Notification Act of 2015 Advances Despite Strong Criticism

On April 17, advocates in support of a federal data security and breach notification law achieved a victory when the House Energy and Commerce Committee passed a bill supporting national legislation. The proposed Data...more

The FDA Gets an EARful on Label Changes

We’ve blogged several times about the FDA’s pending proposal to gut preemption with respect to generic drugs, and that proposal’s numerous flaws. We have been remiss, however, in not mentioning the industry’s 2014...more

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