It wasn’t an opinion, or a grant of certiorari, but it may be important nonetheless. In a concurrence in the denial of certiorari the other day, Justices Thomas and Gorsuch expounded on their view of how preemption works (or doesn’t work) in the context of a decision by a federal agency (not the FDA
Supreme Court
Preemption After Albrecht – Retiring “Most Favorable” Factual Review
Bexis is updating the preemption chapter of his prescription medical product liability treatise, and with Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019), being so new, he collected a bunch of law firm blogs/client updates about the case to see what potential issues other lawyers out there might…
Will Agency Deference Ruling Affect Preemption?
We might not have even read the Supreme Court’s recent – and long and convoluted − agency deference decision, Kisor v. Wilkie, ___ S. Ct. ___, 2019 WL 2605554 (U.S. June 26, 2019), except that it tripped several of our automatic searches by citing both Riegel v. Medtronic, Inc., 552 U.S. 312 (2008),…
Guest Post – Stop the Presses – Supreme Court Decides a Dormant Commerce Clause Case
Today’s guest post is by Tucker Ellis‘ Dick Dean, a longtime friend of the blog and outspoken advocate of using the Dormant Commerce Clause as a one-two punch in certain personal jurisdiction situations. This is his latest update on Dormant Commerce Clause developments. As always, our guest posters are 100% responsible for their…
Perhaps Another Supreme Court Preemption Case?
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…
Breaking News – Albrecht Prescription Drug Preemption Case Decided − Worst Decision of 2017 Reversed
Just in. United States Supreme Court rules unanimously in Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290, slip op. (U.S. May 20, 2019) (“Albrecht”), that the Third Circuit got it wrong in In re Fosamax (Alendronate Sodium) Products Liability Litigation, 852 F.3d 268 (3d Cir. 2017). However, the majority opinion,…
Guest Post: When Is A Deadline Really The Deadline? – Class Certification, Motions to Reconsider, and Appeals Under Federal Rule 23(f)
Today’s guest post by Reed Smith associate Tim Carwinski addresses the broader possible ramifications of a recent Supreme Court decision, Nutraceutical Corp. v. Lambert, 139 S. Ct. 710 (2019). This is one of those many cases that we saw something about, but it didn’t seem that pertinent to what we do, so we let…
More Adventures in Personal Jurisdiction – Has Pennsylvania Fire Already Been Extinguished?
Bexis recently filed a personal jurisdiction amicus brief in Pennsylvania – ground zero in the battle over general jurisdiction by “consent” due to a foreign corporation’s registration to do business in the state (technically, commonwealth). As is readily apparent from our 50-state survey on general jurisdiction by consent, most states reject such an expansive reading…
Supreme Court – The Excessive Fines Clause Applies to the States
Last week, in Timbs v. Indiana, ___ S. Ct. ___, 2019 WL 691578 (U.S. Feb. 20, 2019), the Court unanimously held that the Excessive Fines Clause of the U.S. Constitution’s Eighth Amendment applies to the states:
Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
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Albrecht Oral Argument – Better Us Than Them
We’ve reviewed the transcript of the oral argument in Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290 (U.S.), e.g., the United States Supreme Court appeal from the horrible decision in In re Fosamax (Alendronate Sodium) Products Liability Litigation, 852 F.3d 268 (3d Cir. 2017), which we ranked as the worst case…