The Supremes
Oct 10, 2018


The U.S. Supreme Court welcomed Justice Brett Kavanaugh to the bench this week after a contentious confirmation battle.  With the Supreme Court’s new term just beginning last week, let’s take a look at some of the top cases.



The Court will hear several cases with implications for state and local governments.  The Court will consider overruling its 1979 decision, which permitted a state to be sued in another state’s court system without its consent.  In a case that’s been ongoing for nearly three decades, 44 states, law professors, and the Multistate Tax Commission have filed amicus briefs weighing in how the justices should rule.  In another case, the Court heard arguments whether the federal Age Discrimination in Employment Act (ADEA) covers state and local government employers with fewer than 20 employees.  The case involves a fire district that laid off its two oldest employees after a budget shortfall so intense the district even resorted to bake sales.



Independent contractor.  In the first of a trio of arbitration cases, the Court heard arguments last week that could affect the trucking industry and virtually every sector.  The case raises questions about the proper categorization of the independent contractor designation.  If so, the Court must then decide if the plaintiff is entitled to a court hearing or if he must submit to arbitration.  The Federal Arbitration Act (FAA) exempts certain types of transportation workers from mandatory arbitration agreements.  In the other cases, the Court will consider the scope of the FAA and issues of arbitrability.



In a potentially significant application of antitrust law to e-commerce, the Court will hear arguments to address the interpretation of the “direct purchaser” rule in deciding who can sue for damages under antitrust laws.  In Apple Inc. v. Pepper, the Court will decide whether iPhone users who buy apps from Apple’s App Store may sue Apple for alleged antitrust violations, or whether only app developers may bring such claims.  As the Court fills its docket, we’ll continue to keep reporting on pertinent cases.


Not Always About Food


The U.S. Food and Drug Administration (FDA) released a playbook for healthcare delivery organizations to address threats to medical device cybersecurity.  The Medical Device Cybersecurity Regional Incident Preparedness and Response Playbook outlines a framework for stakeholders to plan for and respond to cybersecurity incidents around medical devices, ensure the effectiveness of devices, and protect patient safety.  This is another enhancement to the FDA’s programs and processes to assure the safety of medical devices.



The FDA announced draft guidance about when retail information should be part of a food recall announcement.  This would mostly apply to serious recalls and reflects the agency’s commitment to improve consumer safety.  Typically, the FDA publicizes labeling information, product descriptions, lot numbers as well as pictures and retail-related distribution information.  Under the new rule, the FDA would name both physical stores and online retailers.  Currently, there are 48 million cases of food-borne illnesses a year.  The FDA is accepting comments on the draft guidance until Nov. 25.


Making Our Way Around the Country


The Idaho Industrial Commission will hold a public hearing today on proposed rules that would allow carriers and self-insured employers to pay indemnity benefits via debit cards or electronic funds transfer.  Under the proposed rules, the injured employee would not incur charges for typical transactions, such as ATM balance inquiries, withdrawing money from an in-network ATM or teller, and inactivity.  Debit cards, or access cards, do not include prepaid debit cards.  The hearing is today from 2:00-3:30 p.m. and the Industrial Commission will accept comments until Oct. 24.



A new bill introduced in the Garden State would require workers’ compensation and personal injury protection (PIP) benefits to cover medical marijuana.  To be eligible, the injured worker needs to be a qualifying patient authorized for medical marijuana and at least one other medication or treatment needs to be attempted and found to be unsuccessful.  The bill has been referred to the Assembly Financial Institutions and Insurance Committee.



The first lawsuit in Minnesota was filed alleging that websites, belonging to a county and a couple of cities, violate disability laws.  The suit claims that the defendant’s website is so inhospitable it denies access.  In the first half of this year, there were over 1,000 lawsuits filed across the nation – a 30% increase from last year.



As many as you know, October is National Breast Cancer Awareness month.  According to the American Cancer Society, there will be 300,000 new cases of breast cancer diagnosed in women in the U.S. this year.  And although rare, men can be diagnosed with breast cancer as well.  We care about your health – get checked out!


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