Monday, January 7
The first case this week, Merck v. Albrecht, involves a failure-to-warn claim against a pharmaceutical company and its claim that federal labeling law prohibited it from offering such a warning. The issue of federal preemption, and specifically “impossibility preemption,” has been at the Court several times and can be rather complex, so it is worth reading this longer overview. Briefly, drug makers have to contend with state common-law negligence torts as well as FDA regulations — so there is an obligation to warn consumers about potential side effects but also a requirement to use only labeling that has been approved by the FDA. In a failure-to-warn case, the manufacturer can have the case dismissed it if can show “clear evidence” that it could not have provided the warning that the plaintiff claims should have been provided. Having a label approved without such a warning is not necessarily enough, if there is reason to believe the company should have sought FDA permission to amend the label. In this case, the company did seek an amendment and it was rejected, but the plaintiffs claim it was rejected because it was not specific enough and an appropriate warning would have been approved if sought.
The second case today involves the scope of the Fair Debt Collection Practices Act and specifically whether it applies to foreclosures:
The question presented in Obduskey v. McCarthy Holthus LLP is whether the definition of “debt collector” under the Fair Debt Collection Practices Act includes attorneys who effect nonjudicial foreclosures. This case is difficult, not because the statutory language is inherently ambiguous, but because words like “debt” and “foreclosure” have popular meanings that do not quite track their technical meanings. And their technical meanings are sufficiently recondite that it is not obvious that Congress intended to deploy them. More importantly, once one begins excavating the statutory text, it becomes clear that Obduskey is a federalism case masquerading as fiddly little puzzle about how to read the FDCPA.
Tuesday, January 8
Herrera v. Wyoming is yet another Native American treaty rights case. Before Wyoming became a state, the Laramie Treaty granted the Crow Tribe (Apsáalooke Nation) “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon,” but Wyoming authorities charged a member of the tribe with violating state hunting laws when he killed elk in Bighorn National Forest, outside tribal lands. The Court granted cert. on “whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the ‘unoccupied lands of the United States,’ thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family.” See the argument preview here.
The second case today, Fourth Estate Public Benefit Corp. v. Wall-Street.com, involves technical issues of filings at the Copyright Office and is not recommended for the casual observer. (There will be a short break after the first argument, when many people will leave.)
Wednesday, January 9
The only case today is Franchise Tax Board of California v. Hyatt — a case that began in 1991 and has been before the Court twice already. After moving to Nevada from California and receiving a $10 million tax bill, Gilbert Hyatt sued California in the Nevada courts, claiming abusive practices during the audit (including “that audit agents had sifted through Hyatt’s personal mail and garbage and had examined his personal activities at his place of worship”). The dispute raises a variety of state sovereign immunity and full faith and credit issues. It’s worth reading the full saga.
[The cases on Monday, January 14 are not ones I would recommend for the casual observer.]
Tuesday, January 15
The first case today is not one I would recommend, but you will need to attend it if interested in the second argument. Home Depot U.S.A. Inc. v. Jackson involves technical procedural issues in class action cases.
Azar v. Allina Health Services is something of a sleeper case, probably because the direct issue is the medicare reimbursement formula for hospitals. However, it involves administrative agency authority more generally, and specifically the effect of “guidance” documents issued without full notice and comment rule making. It could have very far-reaching implications. Notably, Justice Kavanaugh has recused himself because he wrote the opinion at the Circuit level. See the background here.
Wednesday, January 16
Knick v. Township of Scott, Pennsylvania was already before the Court last October, but has been set for reargument after the Court apparently became intrigued by a line of argument developed in that exchange, although it’s also been suggested that the reargument was ordered to allow Justice Kavanaugh to participate and break a likely 4-4 tie. It is a takings clause case; see the general overview as well as the docket entries beginning Nov. 2.
Tennessee Wine & Spirits Retailers Association v. Blair is a dormant commerce clause case in the context of alcohol sales: “Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entities that have resided in-state for a specified time.”