DOJ Memo and Court Opinion Show Trend in Damming Flood of False Claims Act Suits

11th CircuitBusinesses that routinely contract with the government know that while the relationship comes with high financial rewards, it also can expose those companies to massive civil liability.  Under the False Claims Act (FCA), government contractors can find themselves sued for hundreds of millions of dollars based on mere technical violations of complex regulatory schemes.

Luckily, as highlighted in several of our previous posts, the U.S. Supreme Court has recently reinforced the high evidentiary threshold FCA plaintiffs need to meet to bring a successful claim under the most common theory of FCA liability.  A recently disclosed U.S. Department of Justice (DOJ) memo and a recent opinion from the U.S. Court of Appeals for the Eleventh Circuit might similarly lead to fewer baseless claims against government contractors. Continue reading “DOJ Memo and Court Opinion Show Trend in Damming Flood of False Claims Act Suits”

Same-Old Drug Advertising Ban Proposal Would Fail for the Same-Old Reasons

first-amendmentAs the country debates the best path forward for the nation’s healthcare system, interest groups continue to advance different ideas to address their pet causes.  One popular cause is the reduction of drug prices.  Though that debate often occurs based on narrow perceptions of the dollar figures at issue, ideas for price reduction are worthy of consideration, especially given the increasing budgetary percentage that government and personal spending healthcare now occupies.  One drug-price-reduction idea advanced toward the end of last year, however, should be vigorously opposed. Continue reading “Same-Old Drug Advertising Ban Proposal Would Fail for the Same-Old Reasons”

A River Runs to Court: Environmental Activists Circumvent Democracy to Impose Agenda

colorado river gorgeThis is a frustrating time for environmental special-interest activists. Their cause is not one the public rates as a national priority. Their allies are no longer in leadership positions in federal agencies. And though they still have friends at the state and local levels, shrinking budgets prevent those regulators and elected officials from pursuing the activists’ agenda. With waning influence in other branches, many environmental organizations now increasingly look to a long-standing and reliable tool of advocacy—the lawsuit—to achieve their ends.

Some groups have gone well beyond such traditional environmental litigation as citizen suits under state or federal laws, and are instead seeking judicial injunctions that would force government regulators to implement activists’ preferred policies. These lawsuits suffer from a number of infirmities, not the least of which is they turn the entire democratic process on its head. Continue reading “A River Runs to Court: Environmental Activists Circumvent Democracy to Impose Agenda”

Federal Courts, State Governments Push Back Against Corrosive Disabilities Act Suits

sharkCongress passed the Americans with Disabilities Act (ADA) in 1990 to provide important protections for some of the most vulnerable Americans.  Like other federal anti-discrimination laws, the ADA included a private right of action.  And as has happened with many other laws that can be privately enforced, the ADA has seen its share of questionable lawsuits during its nearly three-decade history.

In recent years, the trickle of lawsuits has grown into a flood, with scores of actions alleging what are at best novel interpretations of the law and at worst blatantly baseless “drive-by” claims that seek a quick buck.  Thankfully, courts are increasingly skeptical of plaintiffs’ lawyers’ attempts to broaden the ADA, and elected officials in some states are pushing back against legal shakedowns of small businesses. Continue reading “Federal Courts, State Governments Push Back Against Corrosive Disabilities Act Suits”

Drunk Suing, Another Round: Court Allows False-Labeling Claim on “Hawaiian Beer” to Proceed

indexWe have been covering a legal action against Kona Brewing Company (now renamed Broomfield v. Craft Brew Alliance), which is one suit in the larger trend of class actions against breweries alleging misleading or false labeling and advertising.  In that suit, Judge Beth Labson Freeman, who sits on the U.S. District Court for the Northern District of California (a.k.a. the “Food Court”), recently ruled on Kona’s motion to dismiss.

Though the court trimmed the complaint, dismissing several of the plaintiffs’ causes-of-action and requests for relief, it held that the crux of the allegations could proceed.  The result is that, through strategic pleading, Kona must spend its time and resources fighting a lawsuit with questionable merits.  Judge Freeman created perverse incentives for future litigants by choosing to become, in essence, a product-packaging regulator. Continue reading “Drunk Suing, Another Round: Court Allows False-Labeling Claim on “Hawaiian Beer” to Proceed”

Data-Breach Plaintiffs’ Lawyers Concoct New “Overpayment” Harm Theory, with Mixed Results

vtechPlaintiffs’ attorneys, like politicians, rarely let a good crisis go to waste. Digital crises, such as data-breach and hacking events, are no exception.

Defendants in data-breach-related lawsuits, however, have had a great deal of success beating back consumer-harm claims with motions to dismiss challenging plaintiffs’ lack of standing to sue. As in many of the food-labeling class actions that helped pave the way for data-breach suits, it is often hard for plaintiffs to identify any way that they were actually harmed—because typically they weren’t.

Some data-breach plaintiffs have begun to claim injury based on “overpayment.” Continue reading “Data-Breach Plaintiffs’ Lawyers Concoct New “Overpayment” Harm Theory, with Mixed Results”

Tuned in to the First Amendment: Court Upholds Satellite Radio’s Right to Choose Advertisers

sirius XMBusiness entities have endured increasingly strident criticism of their free speech rights in recent years. Thankfully, the US Supreme Court and most lower federal courts have declined to embrace critics’ ideologically-driven perspective that the First Amendment does not protect corporate speech. Such judicial respect for a business’s speech rights was recently on display in an unusual setting: a contract dispute between Sirius XM Radio and an advertiser. The court decision arising from that dispute, InfoStream Group v. Sirius XM Radio Inc., both demonstrates how the First Amendment can provide an effective defense and underscores the principle that not all speech by commercial enterprises is “commercial speech.” Continue reading “Tuned in to the First Amendment: Court Upholds Satellite Radio’s Right to Choose Advertisers”