One slushy morning this week, we found ourselves searching for our favorite black duck boots.   We found one and put in on, then, after much rummaging in the dark recesses of our closet, found a second.   At this point, we were on the edge of missing our train, so we put on the second shoe

Plaintiffs in (mostly) prescription drug cases have tried, with decreasing success, to limit the scope of implied impossibility preemption under the Mensing/Bartlett line of supreme court precedent to generic drugs.  It’s not a particularly satisfying rationale, but the simple claim that “those were generic drug cases” did at least convince some courts that

One of the more peculiar things about Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019) (“Albrecht”), is the almost off-hand way that the majority (made up mostly of justices that have opposed preemption in closer cases) wandered away from the procedural preemption issues that the Court was

In a significant preemption decision clipping the wings of California consumer protection plaintiffs, two identical decisions:  Borchenko v. L‘Oreal USA, Inc., ___ F. Supp.3d ___, 2019 WL 3315288 (C.D. Cal. July 18, 2019), and Borchenko v. L‘Oreal USA, Inc., 2019 WL 3315289 (C.D. Cal. July 18, 2019) (differing only by docket number, as

It hasn’t happened yet, but just as the Supreme Court originally did with Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019), the Court issued an order on June 24, asking for the Solicitor General’s views in Avco Corp. v. Sikkelee, No. 18-1140.  The Order is on SCOTUSBlog, here