Articles

05.10.17

Fortunately, There Were Witnesses

Something bad happened. Fortunately, there were witnesses. Unfortunately, the witness testimony is not just inconsistent, but irreconcilably contradictory. Sounds like every case that makes it to trial, right? But readers of this column will also recognize this as the situation explored by Akira ...


05.07.17

Why a Court Ruling on Faxing Matters to the Device Industry

“Believe it or not, the fax machine is not yet extinct.”So began the split-panel decision of the U.S. Court of Appeals for the District of Columbia Circuit invalidating the Federal Communication Commission’s Solicited Fax Rule in Bais Yaakov of Spring Valley et al. v. FCC, 14-1234 ...


05.04.17

Ninth Circuit Moves Misleading Pricing Suit Forward

A misleading pricing suit against Neiman Marcus was given new life by the U.S. Court of Appeals for the Ninth Circuit when the panel reversed the dismissal of the complaint.According to plaintiff Linda Rubenstein, the national retail chain duped consumers by using price tags listing a price ...


05.01.17

Scott Gottlieb and the Goldilocks Theory of Bringing Change to the FDA

With the nomination of Dr. Scott Gottlieb to head the U.S. Food and Drug Administration headed to the Senate floor, we can expect another Goldilocks debate. Like the heroine of the classic tale who famously tested the three bowls of porridge to find one too hot, one too cold, and one “just ...


04.28.17

American Society for Testing Materials v. Public.Resource.org, Inc.

The case is the latest in a line to grapple with the issue of whether an industry code or standard established by a private organization that is then incorporated into public law by a government can be copyrightable. The lead plaintiff here develops private sector standards, while the defendant ...


04.26.17

Can Private Property Be Protected Against the Sea?

"Nature can be unforgiving. It is not unusual for wave surge to wipe out a hundred feet or more of beach that homeowners believed provided them a reasonable buffer. See, e.g., Whaler's Village Club v. California Coastal Commission, 173 Cal. App. 3d 240 (1985). The same is true of wave ...


04.20.17

Nine Practices of Successful Public/Private Partnerships

Public/private partnerships—collaborations between the public and private sectors—are increasingly important vehicles to facilitate high-quality development and redevelopment and creation of public facilities and infrastructure.Though PPPs are not new, they are being used more widely in ...


04.20.17

Do Landlords Have the Right to Remove Residential Property From the Rental Market?

Multifamily housing is often treated as if it were a quasi-public resource, for example by rent control laws. The degree to which apartments should or shouldn’t be so treated was recently addressed by a California court in Coyne v. City and County of San Francisco, which considered the limits ...


04.13.17

Supreme Court Refuses to Hear Interchange Settlement Appeal

The U.S. Supreme Court denied a request to review the U.S. Court of Appeals for the Second Circuit's ruling overturning a $7.25 billion settlement agreement in a case brought by retailers against the card networks and banks, ending any question as to whether that agreement would survive court ...


04.13.17

Court Tosses CFPB Suit Against Payment Processor

A payment processor scored a victory against the Consumer Financial Protection Bureau (CFPB) when a North Dakota federal court dismissed the Bureau's lawsuit for failing to plead facts sufficient to support the conclusion that the processor engaged in unfair practices resulting in harm to ...