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Natural Gas Bans and Bans on Bans

Natural Gas Bans, Bans on Bans, and the Ninth Circuit

Concepts: Natural Gas, EPCA, Climate Change, Energy Efficiency Regulation

The Ninth Circuit Court of Appeals recently struck down Berkeley, California’s ban on natural gas infrastructure in new buildings. The court ruled unanimously that the ban violates federal law. This subject is important as we will likely see more natural gas bans in the future and the Berkeley case has set a precedent for how similar cases may be treated.

Brought by the California Restaurant Association, the National Restaurant Association, and the American Gas Association, the crux of the case was that Berkeley’s ban was preempted by the Energy Policy and Conservation Act (EPCA) which gives the federal government exclusive authority to regulate energy efficiency standards for appliances. Agreeing with the plaintiffs, the Ninth Circuit that Berkeley’s ban was “a direct regulation of energy efficiency standards for appliances.” New York has implemented a natural gas ban starting in 2026.

Listen to my interview with Gary Toman, Partner at Weinberg, Wheeler, Hudgins, Gunn & Dial LLC, as we discuss this seminal case and the impact of the court’s ruling on consumers and businesses across the country.

Gary has extensive experience representing corporations, banks and professionals in complex litigation and arbitration matters and business disputes. Gary has substantial experience defending corporations in a wide variety of class actions. Gary received his J.D. from Harvard Law School.

I hope you enjoy the episode. If so, give us a rating!

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This podcast is the audio companion to the Journal on Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences, and the vLex Fastcaselegal research family, which includes Full Court Press, Law Street Media, and Docket Alarm — all now part of vLex. If you have comments or wish to participate in one our projects please drop me a note at Editor@LitigationConferences.com. I’m often polite.

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Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
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Gary TomanWeinberg Wheeler Hudgins Gunn & Dial

Gary Toman has extensive experience representing corporations, banks and professionals in complex litigation and arbitration matters and business disputes. Gary has substantial experience defending corporations in a wide variety of class actions. His practice includes litigation involving business and financial transactions, product liability, business torts, contract matters including participation agreements, shareholder agreements, and non-competition agreements, and environmental, real estate and intellectual property matters. Gary has also handled cases and counseled clients in the healthcare field regarding antitrust issues, practice disputes, employment law matters and other disputes. An experienced appellate advocate, Gary began his career as a law clerk to the Honorable R. Lanier Anderson, III of the United States Court of Appeals for the Fifth and Eleventh Circuits. He has briefed and argued cases in federal and state appellate courts across the country. Gary often serves as appellate counsel at trials to frame the record for possible appeal. Gary received his J.D. from Harvard Law School.

September 25, 2023
Pixel Litigation Tests Old Privacy Law

Pixel Litigation Tests Old Privacy Law featuring Myriah Jaworski

Consumers are driving a wave of litigation against companies for allegedly sharing details of what videos they watch on their platforms.

• Will litigation tamp down this activity?

• What harm is being caused?

• How will existing laws be interpreted?

• Are these organizations within their rights?

Dozens of organizations — ranging from the rough-and-tumble NFL to the decidedly less rough-and-tumble NPR — are among the defendants in nearly 50 proposed class actions which claim Meta Platforms Inc.’s pixel tracking tool facilitated the sharing of personal video consumption data and identities from online platforms to Facebook without user consent. This, the plaintiffs say, violates the federal Video Privacy Protection Act (VPAA) of 1988.

The rising number of VPAA cases demonstrates how plaintiff attorneys are creatively applying traditional causes of action to litigate modern privacy issues in the absence of a federal law. An act that far preceded the proliferation of online video streaming, it followed the publication of one-time Supreme Court nominee Robert Bork’s Blockbuster video rentals. The titles the judge rented disappointed anyone looking for scandal. They included nothing more salacious thanThe Man Who Knew Too Much starring Jimmy Stewart and Doris Day.

Listen to my interview with someone who knows plenty: Myriah V. Jaworski, a member at Clark Hill PLC. Myriah helps me explore the privacy issues raised by these cases and what the future holds for businesses and other parties who handle consumer data.

Myriah represents clients in defense of data breach class actions, privacy torts and statutory claims (IRPA/BIPA), pixel tacking and commercial surveillance matters, internet defamation, technology disputes, and cyber subrogation claims. She defends them in response to regulatory inquiries and investigations arising out of data incidents and privacy practices, including before state Attorney General offices, the Federal Trade Commission and the Department of Human and Health Services – Office of Civil Rights. Myriah is a Certified Information Privacy Professional, United States (CIPP/US) and a Certified Information Privacy Professional, Europe (CIPP/E) as certified by the International Association of Privacy Professionals. She was also a Trial Attorney with the Department of Justice. She received her JD/MS degree from Syracuse University College of Law. And now, I am happy to say, she is a member of the Editorial Advisory Board for the Journal on Emerging Issues in Litigation.

I hope you enjoy the episode. If so, give us a rating!

*******

This podcast is the audio companion to the Journal on Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the Fastcaselegal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and our friends at Law Street Media. If you have comments or wish to participate in one our projects please drop me a note at Editor@LitigationConferences.com.

(actual size)

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
LinkedIn

Myriah V. JaworskiClark Hill PLC

Myriah represents clients in defense of data breach class actions, privacy torts and statutory claims (IRPA/BIPA), pixel tacking and commercial surveillance matters, internet defamation, technology disputes, and cyber subrogation claims.

She defends them in response to regulatory inquiries and investigations arising out of data incidents and privacy practices, including before state Attorney General offices, the Federal Trade Commission and the Department of Human and Health Services – Office of Civil Rights.

Myriah is a Certified Information Privacy Professional, United States (CIPP/US) and a Certified Information Privacy Professional, Europe (CIPP/E) as certified by the International Association of Privacy Professionals. She was also a Trial Attorney with the Department of Justice. She received her JD/MS degree from Syracuse University College of Law. And now, I am happy to say, she is a member of the Editorial Advisory Board for the Journal on Emerging Issues in Litigation.

September 21, 2023
PFAS Regulation: EPA Ushers in Next Era of Mass Tort and Environmental Litigation

The Authors

David J. MarminsArnall Golden Gregory LLP

David is a business litigation partner at Arnall Golden Gregory LLP in Atlanta. He is at the forefront of land use law and environmental law in the context of PFAS, currently defending three manufacturers in litigation. He also has extensive experience handling banking and related disputes, and additional experience in complex business litigation, class actions, and medical malpractice defense of hospitals. David started his legal career as civil rights prosecutor and, before law school, as a reporter. He earned his J.D. from Georgia State University College of Law.

Morgan E.M. HarrisonArnall Golden Gregory LLP

Morgan is a partner at Arnall Golden Gregory LLP where she has represented defendants in PFAS litigation since 2016. Morgan also frequently speaks and writes on the subject. In addition to PFAS, she a member of the firm’s teams dedicated to Litigation & Dispute Resolution, Employment law, Payment Systems and Fintech, and the Background Screening industry. She earned her J.D. from Vanderbilt University School of Law.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Forever Chemicals Will Now Be Regulated

EPA Ushers in New Era of Mass Tort and Environmental Litigation

An enforceable drinking water standard will be an important tool for plaintiffs. Defendants will no longer be able to assert that they have not violated any federal limitations …. And with more government scrutiny … businesses can expect that the wave of recent PFAS litigation will not only continue but will likely increase across the country.

Abstract:

The U.S. Environmental Protection Agency (EPA) announced the long-awaited proposed National Primary Drinking Water Regulation for six per- and polyfluoroalkyl substances, known as “PFAS,” on March 14, 2023. The agency anticipates finalizing the regulation by the end of 2023, and claims that it will save thousands of lives and reduce tens of thousands of serious illnesses.

The EPA has been aware of PFAS since at least the 1990s, when one farmer’s investigation into the chemicals concluded with a seminal lawsuit against multinational chemical company DuPont. A book and subsequent feature film put that lawsuit in the spotlight, and PFAS became mainstream news.

Today, PFAS claims are widely recognized as the next frontier of mass tort and environmental litigation. With the EPA poised to finally enact the first regulation of these chemicals, that frontier is ripe for exploration.

This article explores PFAS and the origin of litigation around the substances as well as the state of PFAS litigation and regulation today. It concludes with some thoughts on what to expect when it comes to PFAS litigation going forward.

Download the article now!

Loved reading David & Morgan’s Journal Article?

Listen to their Podcast!

PFAS Regulation, Litigation, and Differentiation

Tags

Emerging Litigation & Risk Compliance Litigation & appeals Cybersecurity Data Privacy Artificial Intelligence (AI) Insurance Companies Risk Management Corporate & Securities Insurance Claims Recovery Regulations Data Breach Toxic Torts Antitrust Legal Tech Product Liability Settlements Trial Personal Injury Privacy Healthcare Per- and Polyfluoroalkyl Substances (PFAS) Data Analytics Arbitration Constitutional Law Climate Change Cannabis Labor Law Insurance Fraud Liability Claims COVID Alternative Dispute Resolution (ADR) Mediation Diversity Equity Inclusion (DEI) Claims management Professional Liability Legal Research & Writing Business Interruption Law Practice Management Trial Skills Property and Casualty Drug Laws Copyright Law Catastrophic Loss

September 21, 2023
TVPRA, State Statutes Open Door for Civil Damage Claims by Human-Trafficking Victims

The Authors

Coryne Leyendecker Swift, Currie, McGhee & Hiers LLP

Coryne Leyendecker is an attorney practicing in Swift Currie’s litigation section, defending businesses and insurers against claims related to commercial litigation, sexual abuse, governmental liability, premises liability, automobile litigation and construction law.

Pamela LeeSwift, Currie, McGhee & Hiers LLP

Pamela N. Lee is a partner at Swift Currie with more than 15 years of experience practicing in the firm’s litigation section. Pamela devotes her entire practice to litigation, including various tort liability litigation, insurance coverage disputes and the defense of insurance bad faith matters. Her liability practice is wide and varied, encompassing premises liability, product liability, escalator and elevator liability, automobile liability and general personal injury law. She represents companies in the food, automobile and retail industries.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

TVPRA, State Statutes Open Door for Civil Damage Claims by Human-Trafficking Victims

“A plethora of nonprofit organizations and government agencies have collectively produced hundreds of available resources on how to help prevent human trafficking. Overwhelmingly, groups across the board agree that bringing awareness to human trafficking is the most foundational method to stopping human trafficking. By implementing intentional training and internal policies, businesses can not only insulate themselves from third-party claims but they can be a force for good in the fight against human trafficking. “

Abstract: There is not a person alive with a soul that would believe sex trafficking and other variants of modern slavery is a good thing. The individuals that perpetrate those heinous acts should be punished accordingly. In 2003, Congress opened the door for human-trafficking victims to sue for civil damages under the Trafficking Victims Protection Act of 2000 (TVPRA). Since then the TVPRA and similarly drafted state statutes have allowed for human-trafficking victims to seek civil damages against any party that has benefited from their trafficking. Given this expansive inclusion of third-party liability, more and more businesses, especially those in the hospitality industry, are ultimately the ones left to pay for the criminal acts of human traffickers. This article discusses the evolving litigation around human-trafficking claims, beginning with a broad overview of human trafficking, followed by a discussion of the legal standard behind human-trafficking civil suits and recent guidance from U.S. courts on these types of claims. The article concludes with guidance of its own on how businesses can build a foundation for their own defense while simultaneously helping prevent human-trafficking crimes from ever occurring.

Download the article now!

Have an idea for an article?

If you would like to propose an article for publication in the Journal on Emerging Issues in Litigation please review our specifications and benefits, then send us a summary, outline, or draft. If you also would like to discuss the topic on the Emerging Litigation Podcast, please note that.

September 19, 2023
Spotting the Risk, Reaping Rewards: Avoiding Increased Antitrust Scrutiny

The Authors

Katie ReillyWheeler Trigg O’Donnell LLP

Katie has favorably represented antitrust clients in matters involving monopolization, conspiracy, price fixing, exclusive dealing, and other competition-related disputes, including trade secrets and non-compete actions. She has extensive knowledge of the regulatory hurdles and obligations her clients face. Katie earned her J.D. from the New York University School of Law, cum laude.

Natalie WestWheeler Trigg O’Donnell LLP

Natalie West represents sophisticated clients in complex commercial disputes. She regularly serves as the lead brief writer in antitrust cases, employment and consumer class actions, and appellate matters. Natalie graduated with high honors from the University of Texas School of Law, where she served as a member of the Texas Law Review and was elected to the Order of the Coif.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Avoiding Antitrust Scrutiny

Spotting the Risk, Reaping Rewards

The increase in aggressive antitrust enforcement has certainly received significant attention. For the moment, juries are not rewarding the prosecutors. That said, even an unsuccessful government investigation is itself costly and can motivate plaintiffs’ lawyers. Best practices involve not only following the law but also maintaining solid optics to avoid the need for an expensive, if ultimately successful, defense.

Abstract:

A decade ago, few lawyers across the country spent significant time thinking about antitrust law. But, since then, there has been an onslaught of antitrust attacks on businesses and executives across all sectors of the economy. Enforcement efforts have skyrocketed following President Biden’s July 2021 executive order directing a “whole of government” crackdown on competition abuses—and the trend shows no sign of letting up.

Today, no matter the industry or the size of the business, everyone needs to understand these risks and have strategies to minimize them.

This article will walk through the top antitrust risks of the moment and conclude with strategies on how to avoid not only violations but also bad optics that increase exposure.

Download the article now!

September 15, 2023
International Discovery Tool Kit Aims to Facilitate Discovery in Both Domestic and Foreign Litigation

The Authors

Benjamin DanielsRobinson+Cole

Benjamin Daniels advises financial institutions and global corporations about litigation and dispute resolution. As a member of the Business Litigation Group, Ben provides creative and ardent advocacy during litigation, enforcement actions, investigations, crisis management, and white-collar defense matters.

Ben’s clients often face complex, cross-border disputes. He has deep experience with the interplay between domestic and international courts, including discovery disputes and Hague convention proceedings. He also represents clients in international arbitrations and mediations.

Jenna ScovilleRobinson+Cole

Jenna Scoville is a member of the firm’s Business Litigation Group. She focuses her practice on all aspects of general business litigation and dispute resolution, as well as government enforcement matters, and appellate work. She helps companies respond to a variety of business disputes, including claims for breach of contract, unfair trade practices and fraud.

Jenna also has extensive appellate experience. Prior to joining the firm, she clerked for the Honorable Peter W. Hall of the U.S. Court of Appeals for the Second Circuit.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

International Discovery Tool Kit Aims to Facilitate Discovery in Both Domestic and Foreign Litigation

“At a time when litigants have increasingly relied on U.S. federal courts to obtain otherwise unobtainable evidence from entities located within the United States, the U.S. Supreme Court has decisively closed the door to U.S.-style discovery in private arbitrations abroad. That means U.S. companies will no longer face the time, exposure, and expense of U.S.-style discovery that § 1782 had injected into those proceedings.“

Abstract: Business knows no borders. Every year companies increase their global reach and open new offices both domestically and abroad. The COVID-19 pandemic accelerated this process—remote employees spread documents and witnesses from Chicago to Shanghai to Sumatra. This has made litigation—especially discovery—more complex. Navigating this environment requires a tool kit of resources to secure discovery in support of both domestic and foreign litigation. This article discusses those tools and several traps for the unwary practitioner facing cross-border discovery to anticipate to effectively use those tools to their benefit.

When evaluating whether to allow a party to use the Hague Evidence Convention, courts consider several factors, including:

1) the importance of the documents or information to the case,

2) the specificity of the request,

3) whether the information originated in the United States,

4) the availability of other ways to secure the information, and

5) whether compliance with the request would undermine important interests of the United States or the foreign country.

Download the article now!

Enjoyed reading Ben & Jenna’s article?

Ben has a podcast exploring the subject more in 2024!

Podcast: Navigating International Discovery

September 15, 2023
The Use—and Abuse—of Rule 41(a) to Destroy Federal Question Jurisdiction Post-Removal

The Authors

John SearNelson Mullins

John defends manufacturers in product liability litigation involving a range of products, e.g., ATVs, RVs, institutional chemicals, medical devices, and pharmaceuticals. From single cases to mass tort litigation and class actions, John has defended clients in courtrooms around the country.

T. Michael PangburnThor Motor Coach Inc.

Michael is General Counsel of Thor Motor Coach Inc., a final-stage manufacturer of motor homes headquartered in Elkhart, Indiana. He is also an adjunct professor of commercial law at the Notre Dame Law School.

Taryn RyanNelson Mullins

Taryn focuses her practice on litigation. She has experience dealing with products liability, discovery issues, corporate structure and governance, wealth management, private and commercial lending, real estate, and Indian affairs for lobbying both on state and federal levels. Taryn contributed valuable research to this article.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

The Use—and Abuse—of Rule 41(a) to Destroy Federal Question Jurisdiction Post-Removal

“A plaintiff seeking to divest the court of subject matter jurisdiction post-removal should at least comply with the requirements of the rule they have relied on. Glossing over those requirements undermines the purpose and intent of both the rule and removal statutes. The case should stay put in federal court in the absence of compliance.”

Abstract: Defendants in civil litigation can level the often uneven state court playing field by removing cases to federal court through federal question removal. In those cases in which the plaintiff has alleged a claim grounded in federal law, the defendant may remove the case to an often more impartial federal forum. Once removed, the plaintiff has few options for defeating removal. About the only option available to the plaintiff is to forgo the federal claim and divest the court of federal question jurisdiction, forcing remand to state court. In pursuit of a ticket back to state court, however, plaintiffs routinely misuse Fed. R. Civ. P. 41 in seeking to dismiss fewer than all claims and less than the entire action. Too frequently courts simply go along with the ruse. This article addresses the misuse and abuse of Rule 41. It provides an overview of the text and history of Rule 41, discusses how the rule should be used and applied, analyzes decisions that indulge the misuse, and explains how the misuse can and does prejudice defendants.

GET THE COMPLETE ARTICLE

September 14, 2023
Federal Question Jurisdiction

September 14, 2023
Hair Relaxer Injury Litigation

Hair Relaxer Injury Litigation with Jennifer Hoekstra

Last year the Aylstock, Witkin, Kreis & Overholtz law firm filed the first class action against L’Oréal and Softsheen-Carson for injuries, primarily to Black women, allegedly caused by hair relaxers and straighteners. Now there are more than 60 cases consolidated in multidistrict litigation.

Recent studies cited in the litigation show that Black women who use these products develop cancers at a rate disproportionate to that experienced by white women. The plaintiffs say the products are marketed not only to women but to girls as well. The companies challenge the accuracy of the study methods and say, in the case of a key NIH study, that all of women had sisters who were diagnosed with cancer.

Listen to my interview with veteran mass tort plaintiff attorney Jennifer M. Hoekstra, a partner with Aylstock, Witkin, Kreis & Overholtz. Jennifer boasts an impressive academic and professional record, including graduation from two of the nation’s top schools. She earned her Bachelor of Arts in Environmental Science from Columbia College, Columbia University in the City of New York. She relocated to Louisiana to attend Tulane Law School, where she earned her J.D. while also completing a certificate in Environmental Law. During her law school career, she spent a semester studying at the University of Wisconsin School of Law and visited on their International Law Journal as a Junior Member during her Hurricane Katrina evacuation semester.

This is Jennifer’s second appearance on the podcast. She also was my guest on Greatly Exaggerated: The Impact of Bankruptcy on Mass Tort Litigation.

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This podcast is the audio companion to the Journal on Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and our friends at Law Street Media. If you have comments or wish to participate in one our projects please drop me a note at Editor@LitigationConferences.com.

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Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
LinkedIn

Jennifer HoekstraAlystock Witkin Kreis & Overholtz

Jennifer M. Hoekstra is a partner with Aylstock, Witkin, Kreis & Overholtz, PLLC. A native of Saint Paul, Minnesota, Ms. Hoekstra boasts an impressive academic and professional record, including graduation from two of the nation’s top schools. She earned her Bachelor of Arts in Environmental Science from Columbia College, Columbia University in the City of New York.

She is licensed to practice before all Louisiana state and federal courts and the U.S. District Courts for the Northern District of Texas and Eastern District of Missouri as well as the 5th and 8th Circuit Courts.

September 9, 2023
The Light and Dark Sides of Auto-GPT

The Light and Dark Sides of Auto-GPT with Jason Epstein

Auto-GPT is a new generative artificial intelligence application which autonomously “self-prompts” to engage beyond a human-chatbot discussion.

This takes us into a realm of AI self-prompted actions that do not need additional human inputs. It also potentially puts the “traditional” GPT models on a fast track to further reduce human interaction. The number of use cases as well as the number of legal and ethical questions is inevitable. For that reason, it’s becoming increasingly important for businesses to understand how Auto-GPT technologies use data, the potential for biased results, and how to responsibly leverage these powerful technologies.

Listen to my interview with Jason I. Epstein, Partner at Nelson Mullins Riley & Scarborough as we explore this emerging field. Jason is the co-head of the firm’s technology and procurement industry group which provides legal services to global buyers and sellers of technology in industries that include FinTech, HealthIT, and manufacturing. An experienced business and technology negotiator, Jason has dealt with a variety of matters, e.g., the metaverse, technology transfer, privacy, cryptocurrency, IoT, open-source code, and more. Jason received his JD from the University of Tennessee College of Law. He formerly taught “Law of Cyberspace” as an adjunct professor at Vanderbilt University Law School.

I hope you enjoy the episode. If so, give us a rating!

*******

This podcast is the audio companion to the Journal on Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the Fastcaselegal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and our friends at Law Street Media. If you have comments or wish to participate in one our projects please drop me a note at Editor@LitigationConferences.com.

(actual size)

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
LinkedIn

Jason EpsteinNelson Mullins Riley & Scarborough

Jason Epstein is the co-head of the firm’s technology and procurement industry group. Jason and the technology team provide legal services to buyers and sellers of technology both domestically and internationally in various industries, from FinTech and HealthIT to auto and manufacturing

He often serves as outside general counsel and relationship partner to companies in a variety of industries. His areas of focus include board governance, technology, venture capital and private equity, mergers and acquisitions, reorganizations, international commerce, and litigation. Whether advising clients of Fortune 500, mid-market, or small businesses (including under the SBA), he serves as an advisor to the C-Suite and inside General Counsel regarding business-related law.

August 2, 2023