Preemption

News & Analysis as of

Update: Midland Funding v. Madden

In an amicus curiae brief, the US Solicitor General recommends that the petition for certiorari in Madden be denied, but agrees that the Second Circuit’s decision is incorrect and emphasizes the importance of banks being able...more

Financial Services Weekly News - May 2016 #4

Breaking News - Solicitor General Files Brief in Madden v. Midland Funding - On May 24, the U.S Solicitor General (SG) filed a brief with the U.S. Supreme Court (the Court) in the matter of Madden v. Midland...more

Justice Department Sides With Financial Industry on Madden Case

Marketplace loan investors may want to "gather ye discounted Madden loans while ye may," as the Robert Herrick poem reads (taking some fintech license, of course). In the strongest rebuke yet of the U.S. Court of Appeals...more

Case Update: Midland Funding v. Madden: The Solicitor General Brief Could Be a Game Changer

In response to a request of the U.S. Supreme Court (discussed here), the U.S. Solicitor General’s Office on Tuesday filed a brief with the Court expressing the U.S. Government’s views on the merits of the claims brought in...more

The Solicitor General Weighs in on Madden v. Midland

The Solicitor General’s brief argues the Second Circuit’s holding was incorrect, but does not recommend a grant of certiorari. On May 24, the U.S. Solicitor General and the Office of the Comptroller of the Currency (OCC)...more

North Carolina Court of Appeals Declines to Enforce Arbitration Clause in Construction Contract

An arbitration clause in a contract can affect the method parties will use to resolve disputes, what remedies are available to them, and, most importantly, where they will arbitrate and what state's laws will apply. A recent...more

Stick a Fork in It – FDA Anti-Generic Drug Preemption Proposal Postponed Until After the Presidential Election

On May 18, the FDA extended the comment period for its proposed generic drug labeling rule until April 2017 – that is, until after the next presidential election. We believe that, for all practical purposes, this means that...more

Health Update - May 2016

Actions to Advance Infant and Early Childhood Mental Health - Editor's Note: Children's earliest experiences—both positive and negative—impact their brain formation and in turn their social and emotional, physical,...more

New York, New York: The Status of Regulation of Children's Products in the Empire State

Recently, Albany County, New York enacted the “Toxic Free Toys Act” (the Act) prohibiting the sale of any children’s products in the county that contain certain heavy metals and chemicals. The Safe to Play Coalition (the...more

ERISA Preemption: Don't Tread on my Uniform System of Plan Administration

On March 1 the U.S. Supreme Court again reinforced the broad preemptive scope of the Employee Retirement Income Security Act of 1974, 29 U.S.C.A. §1001. In Gobeille v. Liberty Mutual Insurance Co., 136 S. Ct. 936, the court...more

Federal Defend Trade Secrets Act Takes Effect

Employers Should Immediately Revise Confidentiality Agreements to Comply - The Defend Trade Secrets Act, signed into law by President Obama last week and effective immediately, provides a new federal remedy for trade...more

ERISA: Reviewing What Needs to Be Proved to Establish the Suicide Exclusion

For many reasons, some of the toughest cases to litigate involve the application of the suicide exclusion. There is a growing body of evidence challenging suicide exclusion determinations....more

The Current State of Trade Secret Law and how the New Federal Statute Will Shape the Landscape

Trade Secret Protection Schemes: •State: Uniform Trade Secrets Act –Adopted in various forms between 1979 and 2013 •Common Law –New York and Massachusetts •Federal: Defend Trade Secrets Act –Amends the...more

Key Legislation Emerging from the 2016 Maryland General Assembly Session and Local Ordinances to Remember

Maryland's 2016 General Assembly session has now adjourned. Maryland employers should be aware of the following new laws resulting from this legislative term:  (1) Equal Pay for Equal Work; (2) Equal Pay Commission; (3)...more

Same-Day Delivery Companies: 2; MA Independent Contractor Statute: 0. First Circuit Once Again Upholds Classification of Couriers...

Relying on its precedent, the First Circuit Court of Appeals held for the second time this year that the Federal Aviation Administrative Authorization Act of 1994 (“FAAAA”) preempts application of the Massachusetts...more

InterConnect FLASH! No. 54 - Finally! Prong 2 Of The Massachusetts "ABC" Test Is Dead!

On May 11, 2016, the First Circuit Court of Appeals rendered a decision in Massachusetts Delivery Association v. Healy (the “MDA case”) preempting Prong 21 of the Massachusetts Independent Contractor Law (the “Massachusetts...more

Trimming Some Fat From Statin Litigation With Daubert and Preemption

In the mythical days of product liability yore, a big drug litigation was spurred by a notable event—like a study describing a new risk appearing in a major journal, a significant labeling change because of new or greater...more

Certain Provisions of California Resale Royalty Act Are Preempted by the Copyright Act

On April 11, 2016, in Estate of Robert Graham, et al. v. Sotheby’s, Inc., D.C. No. 2:11-cv-08604-MWF-FFM (C.D. Cal. 2016), U.S. District Court Judge Michael Fitzgerald concluded that certain provisions of the California...more

California Telecom Providers File Suit to Protect Competitively Sensitive Information

On May 5, AT&T Mobility along with several other telecommunications providers and trade associations filed a complaint in the Northern District of California against the California Public Utilities Commission (“CPUC”)...more

Implications for the Power Sector of Recent Rulings by U.S. Supreme Court and FERC

One of the most important issues currently facing the power industry is the potential conflict between federal and state roles in power supply planning. Two recent developments at the federal level bear directly on this...more

“Defend Trade Secrets Act” Signed Into Law Effective May 11, 2016

The Defendant Trade Secrets Act of 2016 (“DTSA”), was signed into law by President Obama on May 11, 2016. The new statute creates broad private federal cause of action for trade secret misappropriation and has been hailed as...more

Three Strikes and the Commonwealth Is Out: The Natural Gas Act Preempts Article 97

Last week, Judge John Agostini ruled that the Natural Gas Act preempts Article 97 of the Massachusetts Constitution, which otherwise would have required a 2/3 vote of the Legislature before Article 97 land could be conveyed...more

Regulation Crowdfunding Takes Effect

In Depth - On May 16, 2016, the final rules adopted by the Securities and Exchange Commission (SEC) with respect to Title III of the Jumpstart Our Business Startups Act (JOBS Act) took effect (except for certain forms...more

Is A Blue Sky Exemption For Farms Sustainable?

Today, California regulates the offer and sale of securities more by exemption than qualification. In addition, California and other states have lost authority over a significant amount of securities transactions due to...more

Yet Another Failure-To-Update Claim Bites the Dust

In terms of the legal gyrations plaintiffs try to avoid preemption, we’ve already expressed our opinion that so-called “failure to update” claims take the booby prize. There are good reasons, discussed in these prior posts,...more

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