Bexis had been on the road a lot lately – it seems blogging attract speaking engagements – and at both the recent PLAC fall meeting and the ACI’s FDA Boot Camp, speakers discussed the recent Supreme Court decision in FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012), as having implications for product liability actions involving regulatory allegation claims.  We’d particularly like to thank Mike Walsh from Strassburger for sharing his thoughts (and some nice PowerPoint slides) on this issue.

Fox Television is a Due Process case, and the way Due Process intersects with product liability, at least in this context, is whether there are Due Process constraints on plaintiffs ginning up FDA (or, indeed, other federal) regulatory violation claims based on weird interpretations by paid FDA “experts.”

Can you say “parallel violation” claims?

What do we learn from Fox Television?  The case involved the regulation of purported “indecency” on television – no, it doesn’t involve Quentin Tarantino movies, but rather a far more serious problem than blood-soaked megadeath.  We mean “fleeting expletives.”  On prime time, broadcasters can show as much killing as they want, but the actors can’t swear as they get killed (or about anything else).  So the FCC has decreed – but not very well, the Supreme Court held.

The FCC held that an unscripted f-bomb on live TV was a no-no (ditto fleeting nudity (not the Superbowl wardrobe malfunction; that was another case)) and fined the TV networks.  This was something of a regulatory flip-flop, so the networks sued alleging that their Due Process rights were violated by the arbitrary and capricious actions of the FCC.  The Supreme Court agreed, sort of.


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We’ve posted quite a bit on the substantive due process aspects of punitive damages. Other than that, we frankly hadn’t thought about substantive due process being applicable to other aspects of product liability litigation.

Well, it’s time to start thinking.

A decision has just come down that accepts the argument that the expansion of state