Preemption

News & Analysis as of

First Circuit Decision Strengthens Preemption Defense in Name-Brand Pharmaceutical Litigation

On February 20, 2015, the U.S. Court of Appeals for the First Circuit affirmed the dismissal of plaintiffs’ state-law consumer protection claims against a name-brand pharmaceutical manufacturer, concluding they were impliedly...more

Virginia Supreme Court Opinions Affecting Local Government Law – April 16, 2015

The Virginia Supreme Court issued opinions this morning during its April term. This term resulted in several opinions affecting Virginia local government law. Opinions addressed evidence in a condemnation case, interpreted...more

Financial Services Law - April 2015

This special edition of the Financial Services Law Newsletter includes a series of blog posts written by Peer-to-Peer Lending and Crowdfunding partner Brian S. Korn for the LendItUSA 2015 conference to be held April 13-15 in...more

Ninth Circuit Upholds FDA’s Primary Jurisdiction Over “Natural” Labeling On Cosmetics But Orders Stay Rather Than Dismissal

Plaintiffs’ lawyers love to challenge products labeled as “natural,” with hundreds of false advertising class actions filed in just the last few years. Recently, in Astiana v. Hain Celestial (pdf), the Ninth Circuit reversed...more

TracFone Files Supplement to Emergency Petition for FCC Preemption on 911 Fees

As noted in our prior update, in November 2014, the FCC Wireline Competition Bureau issued a Public Notice requesting industry comment on a Petition filed by TracFone Wireless regarding 911 fees charged to Lifeline...more

Bob Marley’s Heirs Lanham Act Win Upheld - Fifty-Six Hope Road Music v. A.V.E.L.A., Inc.

Addressing the issue of when the use of a celebrity’s likeness or persona in connection with a product constitutes a false endorsement that is actionable under the Lanham Act, the U.S. Court of Appeals for the Ninth Circuit...more

“Common” Defense No Bar to Removal in Preemption Case

We’re not law professors. We don’t typically read opinions with an eye to where they fit (or don’t) in some grand jurisprudential scheme. We’re litigators, so we read opinions with an eye to whether they can help our...more

9th Circ. Panel Bolsters Trustees’ Reach-Back Powers

In a recent decision, the United States Bankruptcy Appellate Panel of the Ninth Circuit resolved what it described as an issue of “first impression” in the Ninth Circuit — whether or not the two-year statute of limitations...more

Product Liability Update - April 2015

In This Issue: - First Circuit Holds State Law Claims Against Drug Manufacturer for Allegedly Misleading Efficacy Representations in FDA-Approved Label Preempted by Food, Drug & Cosmetic Act Because Plaintiffs’...more

First Steps Taken to Establish Federal Law Requiring Companies to Secure Consumer Data; Will Congress Pass Something This Year?

The U.S. House Energy & Commerce Committee took the first steps recently to establish a federal law that would cover actions that companies need to take to secure consumer data. ...more

State Law Claims Based on HIPAA Guideline Violations Are Not Preempted by HIPAA

Though the Health Insurance Portability and Accountability Act of 1996 (HIPAA) precludes a private right of action in the event of a breach of confidentiality, recent decisions have found that claims based on such breaches...more

Recent Federal Court Ruling: No ERISA Preemption of Texas Prompt Pay Law Regarding Payment Deadlines; Texas Legislature May Act on...

What's new. A Texas federal district court has ruled that ERISA does not preempt or prohibit application of the Texas Prompt Pay ("TPP") law to Third Party Administrators ("TPAs") of self-funded benefit plans. Judge Lynn...more

Second Circuit Joins Chorus In Favor Of CDA Immunity

In Ricci v. GoDaddy.com, the United State Court of Appeals for the Second Circuit affirmed a dismissal of defamation claims against GoDaddy.com, a website host, invoking the immunity and preemption provisions of the...more

Gaming Legal News: Volume 8, Number 5: North Fork Tribe Sues State For Compact In Latest Chapter Of Gaming Saga

By the summer of 2014, it appeared that the North Fork Rancheria of Mono Indians of California had finally made it over the last hurdle to begin construction of a Class III casino with 2,000 slot machines and 40 gaming tables...more

Breaking News - Reinforcement For Buckman

We’ve been watching for Armstrong v. Exceptional Child Center, Inc., ___ U.S. ___, 2015 WL 14194231 (U.S. Mar. 31, 2015), ever since we spotted an intriguing footnote mentioning the certiorari grant in Ouellette v. Mills, ___...more

Medicaid Decision Makes Strange Bedfellows

The Idaho Medicaid program scored a victory in the United States Supreme Court today, and did it by persuading normally liberal Justice Breyer to enter the conservative tent reliably inhabited by Justices Scalia, Thomas,...more

The Rights of an Employee to Object to Working in an Unsafe Situation

In this Newsletter: OSHA - NLRA - State Law & Possible Federal Law Preemption - Conclusion - Excerpt from OSHA: The Occupational and Safety Health Act, 29 U.S.C. § 651 et seq.,...more

SEC Adopts Final Rules Expanding Regulation A, Providing a New Option for Offerings Under $50 Million

On March 25, 2015, the SEC formally adopted its final rule amendments governing the expansion of registration exemptions for public offerings of $50 million or less in any 12-month period under Regulation A of the Securities...more

Result-Driven Affirmance of Birth Defect Verdict

We have said it before – birth defect cases are hard. Juries and judges are sympathetic where the individual whose health is at issue had no say in the matter. We have also said that we do not like it when judges frame the...more

Food Litigation Newsletter - March 2015 # 2

In This Issue: - RECENT SIGNIFICANT DEVELOPMENTS AND RULINGS ..Ninth Circuit Reverses Dismissal Based on Standing, Preemption ..Court Applies Common Sense Standard in Dismissing ‘No Refined Sugars’...more

Supreme Court Update: Omnicare, Inc. V. Laborers Industry Pension Fund (13-435), B&B Hardware V. Hargis Industries (13-352) And...

The Court began its March sitting this week (just in time for April), and issued decisions and two new cert grants. In this Update, we'll discuss Omnicare, Inc. v. Laborers Industry Pension Fund (13-435), on issuer liability...more

Supreme Court To Decide California Arbitration Issue

On March 23, the U.S. Supreme Court granted certiorari in DirecTV, Inc. v. Imburgia, agreeing to resolve a split between the Ninth Circuit and California state courts on how to interpret the same DirecTV arbitration...more

Failure to Warn About Dangers of Off-Label Use of Medical Device Preempted Under Federal Law

In Thorn v. Medtronic Sofamor Danek, USA, the Honorable Janet T. Neff dismissed the plaintiff's state law claims of failure to warn and negligence as preempted under the Medical Device Amendments of 1976 ("MDA"), 28 U.S.C. §...more

Third Circuit: Pennsylvania Law Preempted By The FAA

The Third Circuit recently ruled that a Pennsylvania statute prohibiting an unregistered businesses from maintaining any “action or proceeding” in any court in the state interferes with the enforcement of arbitration awards...more

One More Hurdle Cleared – Amgen’s Preliminary Injunction Motion for Filgrastim is Denied

On March 19, 2015, Judge Seeborg of the United States District Court for the Northern District of California denied Amgen Inc.’s motion for a preliminary injunction in the Amgen v. Sandoz case, thereby removing one more...more

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