Rejection of Subway “Footlong” Settlement Highlights Absurd Incentives of Class Actions

1ftIn early 2013, when Australian teenager Matt Corby took to social media to share a photo of his recently purchased Subway “foot long” sandwich next to a tape measure revealing that the sandwich measured only 11 inches in length, he never could have anticipated the “viral” chain of events that he had just set into motion.

Other Subway customers and media outlets soon descended on Subway franchises to undertake their own sandwich measurements, prompting the New York Post to announce that “Some Subway ‘Footlong’ Subs Don’t Measure Up.”   According to the Post, four out of seven footlong sandwiches randomly purchased at Subway restaurants in Manhattan, Brooklyn, and Queens measured less than 12 inches in length (ranging from 11 to 11.5 inches). Continue reading

Days Apart, Second and Sixth Circuits Muddy the Waters on Class Ascertainability

2nd Circuit6th Circuit Whether federal district courts may certify a damages class action where no reliable, administratively feasible method exists for identifying class members is a question that has long plagued class-action defendants. The need for class ascertainability is especially dire in low-value consumer class actions in which manufacturers, distributors, and retailers are sued over “mislabeled” food, beverages, or other inexpensive consumer products. Unfortunately, the federal courts of appeals are sharply and hopelessly divided on whether Rule 23, which governs class actions in federal courts, includes an implicit ascertainability requirement. Continue reading

The Supreme Court’s “Microsoft Corp. v. Baker” Decision Restores Much Needed Sanity to Federal Appellate Procedure

supreme courtMicrosoft Corp. v. Baker is one of those cases that only a lawyer could love. At issue was whether a federal appellate court has jurisdiction to review a class-certification order if the plaintiffs have voluntarily dismissed all of their claims, with prejudice.

Class-action plaintiffs have long sought the right to immediately appeal from orders denying class certification. In the 1960s and 1970s, some federal courts of appeals began allowing such an immediate right of appeal under the so-called death-knell doctrine. Under that judicially created rule, if the plaintiffs could show that the denial of class certification—if left unreviewed—would end the lawsuit for all practical purposes, the appeals court would grant review of that interlocutory order. Continue reading

Department of Labor’s Fiduciary Rule Is Vulnerable on First Amendment Grounds

DOLPromulgated in April 2016, the Department of Labor’s (DOL) highly controversial Fiduciary Rule drastically expands the universe of retirement investment advisors and employees who are deemed to be “fiduciaries” under federal law. Abandoning 40 years of settled statutory interpretation of the Employee Retirement Income Security Act of 1974 (ERISA) and parallel provisions of the Internal Revenue Code (IRC), DOL now maintains that a fiduciary is anyone who provides “recommendations” that are individualized or directed to a specific recipient for consideration in making investment or management decisions with respect to securities or other property of an ERISA plan or an IRA. Continue reading

FEDERAL REGULATORY READING LIST: Resources for New Leaders at EPA and FWS

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US-FishAndWildlifeService-Logo.svg*Note: This is the fourth in a series of posts compiling Washington Legal Foundation papers, briefs, regulatory comments, and blog commentaries relevant to critical legal and constitutional issues facing new senior leaders at specific federal agencies. To read posts addressing other federal agencies, click here.

Few agencies have been more active in the past eight years than the Environmental Protection Agency (EPA). With its singular, near-myopic focus on combatting climate change, EPA has issued a series of regulations that not only threaten to raise energy costs dramatically, but have already cost tens of thousands of Americans their livelihoods. Similarly, the Department of Interior’s Fish & Wildlife Service (FWS) has continued to expand the scope of the Endangered Species Act (ESA), among other federal laws, in ways that fail to strike a proper balance between safeguarding ecological health and respecting private property rights and other individual and business civil liberties.

Through its public-interest litigation, publications, and other advocacy, WLF has influenced debates over many EPA and FWS policies and actions with timely papers and blog commentaries, and weighed in directly through regulatory comments and amicus briefs. Those activities have resulted in an impressive body of reference materials that are instructive for new leadership in the two agencies. Below we provide a summary of and links to those documents to simplify access to relevant WLF work product in specific areas. Continue reading

Are Anti-SLAPP Statutes Toothless in Federal Courts?

cnnAs the Internet increasingly has become the dominant means of conveying both facts and opinions, the number of defamation and other speech-related lawsuits filed in state and federal courts has risen markedly. Responding to what some lawmakers characterize as “strategic lawsuits against public participation” (SLAPP)—suits aimed at suppressing legitimate speech or public debate through imposing the financial burdens of litigation—many states have enacted so-called anti-SLAPP statutes. One characteristic feature of all anti-SLAPP statutes is that they provide an expedited mechanism whereby a defendant can have a qualifying SLAPP suit dismissed quickly. Continue reading

Kudos to Colorado AG for Rebuking Boulder County on Its Fracking Moratorium

coloradoagIn the last several years, municipal and county governments have thrust themselves into some of the nation’s most contentious legal-policy debates by imposing regulatory mandates and restrictions on business conduct. New York City famously tried to shrink soda serving sizes. San Francisco has dictated that ads for “sugary drinks” include health warnings. Philadelphia has prohibited businesses from asking job applicants about their salary history. And numerous cities and counties have enacted restrictions or bans on oil and natural gas extraction from shale plays within their borders.

That last type of local regulation has instigated many battles between city or county government and state lawmakers. The latest fight—between the State of Colorado and the County of Boulder—is about to come to a head. In a January 26 letter sent to Boulder County’s three commissioners, Colorado Attorney General Cynthia H. Coffman has given the county until Friday, February 10 to rescind its “moratorium” on accepting new applications for oil and gas development. If the county fails to act, Attorney General Coffman has pledged to file suit. Continue reading