Commodus from “Gladiator”
Last Monday we noted the results of the Supreme Court’s “Long Conference,” from which the Court granted eight new cases but announced only one denial of review. We listed a number of prominent cases affecting the free enterprise system which were scheduled to be acted on at the Long Conference, but as of September 30 no action had been taken.
The Court turned thumbs down this morning on most of those cases we listed last week, as it issued a 94-page orders list. But we were encouraged to see that the Court decided to seek the views of the Solicitor General of the United States in two cases we listed, most importantly, in our opinion, Medtronic v. Stengel. The other petition on which the Court sought the Solicitor General’s view is U.S., ex rel. Noah Nathan v. Takeda Pharmaceuticals North America, involving the pleading standard for a qui tam suit under the False Claims Act.
If the Court allows the U.S. Court of Appeals for the Ninth Circuit’s Stengel en banc decision to stand, it will preserve (if not exacerbate) the current split among the federal appeals courts that exists for implied preemption of some state-law claims brought against medical device makers. WLF supported Medtronic’s cert effort with an amicus brief. As this Guest Commentary Legal Pulse post by Sedgwick’s Matthew Reed explained, the Ninth Circuit’s ruling was at odds with rulings on the same preemption issue from the Sixth and the Eighth Circuits. We won’t hazard a guess on what the Solicitor General will recommend, but bear in mind that the U.S. supported Mutual Pharmaceutical last term in Mutual Pharmaceutical v. Bartlett, which involved preemption in the generic drug liability context.
The Court notably took no action today in Utility Air Regulatory Group v. Environmental Protection Agency , one of a number of cases appealed to the justices involving EPA’s greenhouse gas emission regulations. It’s possible the Court will take action on those cases when
The Court denied review in another case in which WLF had supported the Petitioner with an amicus brief, Novartis v. Fussman. The doctrine of preemption was at issue in that case as well. The Fourth Circuit had ruled below that federal law does not preempt a jury from imposing punitive damages under state law on a drug manufacturer.
The other cases we highlighted last week in which the Court denied cert were:
- Philip Morris USA Inc. v. Douglas (due process challenge to Florida law)
- Brennan v. Concord EFS (who is a “direct purchaser” for antitrust suits)
- Luminant Generation Company LLC v. Environmental Protection Agency (deference under Clean Air Act)
- Ring v. U.S. (honest services fraud)
- American Beverage Association v. Snyder (discrimination against interstate commerce)