2016Washington Legal Foundation

AnnuAl RepoRt

40 YEARS OF KEEPING FREE ENTERPRISE FREE

2016 Legal Policy Advisory Board Members

Prof. Stephen M. BainbridgeWilliam D. Warren Distinguished Professor of LawUCLA School of Law

Mark A. BehrensShook, Hardy & Bacon LLP

Carol Elder BruceK&L Gates LLP

James H. Burnley, IVVenable LLP

Ralph J. CacciaWiley Rein LLP

Michael A. CarvinJones Day

Drew ClarkVice President and General CounselMcKee Foods Corporation

Charles CooperCooper & Kirk PLLC

Joseph E. diGenovadiGenova & Toensing

Viet D. DinhKirkland & Ellis LLP

John EnglerPresident The Business Roundtable

The Hon. Tim FoxAttorney GeneralState of Montana

Richard L. FrankOlsson Frank Weeda Terman Matz PC

Harold Furchtgott-RothPresident, Furchtgott-Roth Economic Enterprises

Kenneth S. GellerMayer Brown LLP

Stuart M. GersonEpstein Becker & Green PC

Thomas C. GoldsteinGoldstein & Russell PC

Eric GrannonWhite & Case LLP

Prof. William F. HarveyCarl M. Gray Professor of Law EmeritusIndiana University Robert H. McKinney School of Law

Allyson N. HoMorgan, Lewis & Bockius LLP

Coleen KlasmeierSidley Austin LLP

Philip A. LacovaraMayer Brown LLP

Katharine R. LatimerHollingsworth LLP

Jay P. LefkowitzKirkland & Ellis LLP

Susan W. LiebelerPresident, Lexpert Research Services

Arvin MaskinWeil, Gotshal & Manges LLP

Rob McKennaOrrick, Herrington & Sutcliffe LLP

John A. MerriganDLA Piper US LLP

Prof. John Norton MooreWalter L. Brown Professor of Law, University of Virginia School of Law

Gerald J. MossinghoffOblon, McClelland, Maier & Neustadt LLP

Theodore B. OlsonGibson, Dunn & Crutcher LLP

R. Hewitt PateVice President and General CounselChevron Corporation

Carter G. PhillipsSidley Austin LLP

Prof. Stephen B. PresserRaoul Berger Professor of Law Emeritus Northwestern Pritzker School of Law

Prof. George L. PriestEdward J. Phelps Professor of Law and EconomicsYale Law School

Charles F. (Rick) RulePaul, Weiss, Rifkind, Wharton & Garrison LLP

Kenneth W. StarrThe Louise L. Morrison Chair of Constitutional LawBaylor Law School

The Hon. John W. Suthers Mayor, Colorado Springs, CO

George J. TerwilligerMcGuireWoods LLP

Prof. Larry D. ThompsonJohn A. Sibley Professor in Corporate and Business Law University of Georgia School of Law

Daniel E. TroySenior Vice President and General CounselGlaxoSmithKline

Joe D. WhitleyBaker, Donelson, Bearman, Caldwell & Berkowitz PC

Chairman of the BoardThe Honorable Jay B. StephensKirkland & Ellis LLP

Chairmen EmeritiThe Honorable Dick ThornburghK&L Gates LLP

Frank J. Fahrenkopf, Jr., Esq.

The Honorable Richard K. WillardSteptoe & Johnson LLP

WLF Legal Policy Advisory Board

“At a time when our nation’s free-enterprise system is facing many challenges, Washington Legal Foundation speaks with a powerful voice in helping to shape a legal and regulatory environment conducive to economic growth and prosperity for all people. Join me in supporting this dynamic organization, the talented team at WLF who provides leadership, and the engaged network of committed professionals across the country whose pro bono efforts contribute mightily to the important work of this remarkable

Foundation.”

—Jay B. Stephens, Chairman, Legal Policy Advisory Board

Adams and Reese LLP

Alexander Dubose Jefferson & Townsend LLP

Arnold & Porter LLP

Baker Botts LLP

Ballard Spahr LLP

Bryan Cave LLP

Buchanan Ingersoll & Rooney PC

Carlton Fields Jorden Burt PA

Carter Ledyard & Milburn LLP

Chuhak & Tecson PC

Conn Maciel Carey PLLC

Covington & Burling LLP

Davis Wright Tremaine LLP

Dentons US LLP

Friday Eldredge & Clark LLP

Gibson, Dunn & Crutcher LLP

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We applaud the law firms and professionals who offered their expertise as pro bono attorneysand authors in 2016.

Goldberg Segalla LLP

Goodwin Procter LLP

Graydon Head & Ritchey LLP

GrayRobinson PA

Greenberg Traurig LLP

Grimaldi Law Offices

Gunster, Yoakley & Stewart PA

Harkins Cunningham LLP

Herbert Smith Freehills LLP

Hogan Lovells US LLP

Holland & Knight LLP

Hollingsworth LLP

Hunton & Williams LLP

Jones Day

KaiserDillon PLLC

Kelley Drye & Warren LLP

Kilpatrick Townsend & Stockton LLP

King & Spalding LLP

Kirkland & Ellis LLP

Lane Powell PC

Latham & Watkins LLP

Littler Mendelson PC

Margrave Law LLC

Mayer Brown LLP

McGuireWoods LLP

Moran Reeves & Conn PC

Morgan, Lewis & Bockius LLP

Orrick, Herrington & Sutcliffe LLP

Pepper Hamilton LLP

Perkins Coie LLP

Reed Smith LLP

Sedgwick LLP

Seyfarth Shaw LLP

Shook, Hardy & Bacon LLP

Sidley Austin LLP

Squire Patton Boggs (US) LLP

Steptoe & Johnson LLP

Sterne, Kessler, Goldstein & Fox PLLC

Stoel Rives LLP

Strasburger & Price LLP

Strickland Brockington Lewis LLP

Sullivan & Cromwell LLP

Tonkon Torp LLP

Venable LLP

Wheeler Trigg O’Donnell LLP

White & Case LLP

Wiley Rein LLP

Wilmer Cutler Pickering Hale and Dorr LLP

Wilson Sonsini Goodrich & Rosati PC

Winston & Strawn LLP

Pro Bono NetworkWashington Legal Foundation

believes that our nation’s free-

enterprise system must be kept

free from excess litigation and

regulation in order to thrive.

Our compelling mission is to

preserve and defend the liberties

that define our American spirit. Founded in

1977, WLF advocates for free-market principles,

a commonsense legal system, a limited and

accountable government, individual and business

civil liberties, and the rule of law. WLF uses an

effective three-pronged strategy to maintain our

role as the nation’s foremost public-interest law firm

and policy center. WLF LITIGATES precedent-

setting issues before the courts and regulatory

agencies; PUBLISHES and distributes timely and

influential legal studies; and COMMUNICATES

free-enterprise principles to millions of Americans

through media briefings, public education

campaigns, editorials, and our blog,

the WLF Legal Pulse.

Advocate for Freedom and Justice

4

The administration in Washington, DC is changing, but that is not going to alter WLF’s longstanding approach to pro-free enterprise legal advocacy. We have been around long enough to learn that unfriendly regulators and regulations emerge from both political parties.

In addition, the plaintiffs’ bar and its activist allies could well become even more

aggressive if they believe they now stand a better chance of achieving “progress” by filing cases in still-friendly federal courts rather than by lobbying Congress or the executive branch. WLF stands ready to meet and oppose them with our litigation, publication, and

educational communication capabilities.If 2016 serves as any guide, WLF will

enjoy a considerable amount of success in doing so. As detailed inside, WLF won five certiorari grants at the U.S. Supreme Court this past calendar year: Amgen, Inc. v. Harris; Microsoft Corp. v. Baker; State Farm Fire & Casualty Co. v. United States ex rel. Rigsby; Ziglar v. Abassi (a/k/a Ashcroft v. Turkmen); and TC Heartland LLC v. Kraft Foods Group Brands LLC.

That success has continued into the current Supreme Court term. In fact, as reported recently in a study of this term by Adam Feldman of the EmpiricalScotus.com website, “Washington Legal Foundation was involved in far more successful cert stage filings than any of the other participating interest groups by quite a large margin.” WLF’s 43% success rate with cert petitions we supported this term is quite an achievement.

WLF was particularly honored in the Ashcroft/Ziglar set of cases to represent five

former Attorneys General of the United States and two former Directors of the Federal Bureau of Investigation as clients on our successful amicus brief. These wins reaffirmed WLF’s policy of filing amicus briefs in support of cert petitions, rather than just filing at the merits stage of litigation.

WLF’s views fared well in merits cases too, with a trio of major victories at the U.S. Supreme Court, a pair of en banc victories at the DC and Fifth Circuit Courts of Appeals, and other victories in the Second Circuit, the Sixth Circuit, the Oregon Supreme Court, and the U.S. District Court for the Northern District of Texas, among other venues. WLF also has a pending cert petition for one of our own clients in an important case against the Consumer Financial Protection Bureau that is poised to decide the ramifications for a federal agency of being headed up by an illegal recess appointee.

Justice Antonin Scalia’s untimely death cast a long shadow over 2016. His passing no doubt affected WLF’s cases, and that event’s likely effects on the Supreme Court’s jurisprudence were a recurring theme in WLF publications and online programs. Several outside publications and organizations also turned to WLF for insight—sometimes at length—into what to expect from the interim, smaller Court and what longer-term impacts could be felt from the loss of Scalia.

WLF’s Legal Studies Division critiqued numerous regulatory proposals and rules this past year from a host of federal agencies. Other articles examined state-based problems like merger-tax lawsuits in Delaware, the collateral-source rule in Florida, the Martin Act in

To Our Friends and Supporters

New York, the statute of repose in North Carolina, and fracking rules in several places. Still other publications explored the continuing aftermath of recent Supreme Court decisions on securities-fraud liability (Omnicare), implied-certification False Claims Act cases (Escobar), attorneys’ fees in patent cases (Octane Fitness), and personal jurisdiction (Daimler), among others.

Notable authors who wrote for WLF this year included incoming CIA Director Mike Pompeo, former Deputy Attorney General Larry Thompson, Professor Philip Hamburger, and Professor Eugene Volokh. We were also pleased to feature in-house talent from Michael Kaplan, Chief Legal Officer of Red Robin Gourmet Burgers, Associate General Counsel Edward Berg of Sanofi, and Assistant General Counsel Chris Gramling of Eli Lilly. These and many other accomplished attorneys provided expert insight on key regulatory, statutory, and constitutional questions in WLF’s publications, Web Seminars and Media Briefings.

Our deepest thanks go out to those allies who have supported WLF generously this past year. The resources you provide enable WLF to have a major impact on pressing legal issues and to maintain a sterling reputation for providing top-notch legal advocacy. Without your help, we could not serve the public interest by promoting free-enterprise values in courtrooms, federal agencies, and the public square. We express particular gratitude to Chairman Jay Stephens and the other members of WLF’s Legal Policy Advisory Board whose advice, assistance, and encouragement sustain WLF’s mission.

Please know that WLF remains committed to defending economic freedom, restoring limited and accountable government, protecting individual and business civil liberties, and preserving the rule of law. We share the accomplishments highlighted in this 2016 Annual Report with utmost gratitude to you and with lofty expectations for the year ahead.

5

Constance Claffey LarcherPresident and Chief Executive Officer

Markham S. Chenoweth General Counsel

WLF was particularly honored in the Ashcroft/Ziglar case to represent five former Attorneys General of the United States and two former Directors of the Federal Bureau of Investigation

Enterprising Legal AdvocacySuccessfully advocating for a legal and regulatory envi-ronment that fosters free enterprise requires the timely dissemination and steady reinforcement of compel-ling arguments and ideas to those lawyers and jurists who shape the law. WLF established the Legal Studies Division in 1986 to deliver just such well-informed critiques and principled analysis to decision makers in a variety of purpose-built publication formats.

WLF’s publications target highly selective legal policy- making audiences. We market our publications to:• Federal and state judges and their clerks• Members of Congress and their aides• Executive branch attorneys and regulators• State legislators, state attorneys general, and their aides• Business leaders and corporate general counsel• Law professors• Influential legal journalists, bloggers, and major media commentators

We archive all of our publications from at least the last decade on our website’s searchable online catalog. Many are also available on the Lexis/Nexis® database. Our authors supplement WLF’s own highly target-ed distribution with their own extensive marketing efforts. Recipients frequently utilize our publications as third-party educational tools in legal-policy cam-paigns, handouts at conferences, references in law review articles and court briefs, and instructive mate-rials in internal corporate-compliance programs. They are also routinely reprinted in specialized trade and professional journals.

Unlike a traditional “think tank” that supports a stable of in-house scholars, each year WLF solicits scores of independent legal professionals who author our pub-lications on a pro bono basis. This allows WLF to tap

relevant expertise and leverage our limited resources to put these intellectual tools in the right hands.

WLF’s legal studies library surpassed 2,500 publica-tions in 2016. Among the over 2,200 different au-thors WLF has enlisted in three decades are federal and state judges, regulators, and elected officials; em-inent legal scholars; law firm partners and associates; corporate executives; and in-house counsel.

WLF released 71 papers across seven different for-mats in 2016 written by 103 different legal profes-sionals, including 77 who were writing for WLF for the first time.

Our 2016 publications confronted many of the most critical legal challenges facing America’s free-enterprise system today. For instance, Washington’s army of unelected bureaucrats continued to churn out new regulations, guidance documents, and other burdensome mandates that chill economic growth and increase consumer costs. WLF focused several papers on actions that exceeded agencies’ authority, treaded on constitutional rights, or misinterpreted Congress’s statutes. Several papers also critiqued the

WLF’s Legal Studies

Division is the preeminent

publisher of timely and

persuasive legal analyses.

These papers do more

than inform government

officials, business leaders,

the legal community, and

the public about issues vital

to the fundamental rights

of every American. They

tip the scales in favor of

maintaining those rights.

Publishing

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federal judiciary’s review of agency actions, with a Working Paper and a Legal Opinion Letter separately tracing the origins of extreme judicial deference and the Supreme Court’s profound misunderstanding of the Administrative Procedure Act.

WLF also continued its thought leadership on the First Amendment in 2016 with numerous publica-tions on commercial free speech. Decades of WLF advocacy in the courts and in the court of public opinion for the free exchange of information about products and services has led to increased judicial respect for commercial speech. Several WLF papers called on courts to further expand free-speech rights, such as a Legal Backgrounder on the Supreme Court’s Town of Gilbert ruling and another on First Amend-ment protections for online data collection. Other publications noted the government’s increasing reli-ance on warnings and disclosures and urged courts to clarify constitutional protections against compelled speech.

For a complete list of 2016 publications and the topic areas they covered, consult pages 12-15.

Thousands of decision makers and top legal minds across the country rely on our biweekly publications for the most insightful analysis of timely legal issues.

• Administrative procedure• Antitrust and consumer protection• Arbitration rights• Asbestos and toxic torts• Business civil liberties and criminal liability• Civil justice reform• Class-action litigation• Commercial speech• Communications and information technology• Discovery process and procedure• Employment law• Environmental regulation and enforcement

• Expert evidence and junk science• Food, drug and medical-device law• Foreign Corrupt Practices Act• Government contracting and False Claims Act• Health care• Insurance• Intellectual property and other property rights• National security• Occupational safety and health• Product liability and safety• Punitive damages• Securities and corporate governance

Our advocacy, which advances

economic liberty, individual rights,

limited and accountable

government, and the rule of law,

covers more than two dozen legal

issue areas, including:

98

Legal BackgrounderNewer patent-troll targets, such as natural gas and oil-extraction businesses, should apply five litigation-avoidance and defense tactics utilized successfully in the past by technology companies.

Counsel’s AdvisoryInterested parties affected by class-action

litigation were asked to file comments with a federal rules advisory committee on

recommended changes to Federal Rule of Civil Procedure 23.

Legal Opinion LetterThe Supreme Court-created Chevron doctrine mandating judicial deference to federal regulators’ interpretation of ambiguous laws is directly at odds with the governing statute’s text and the separation of powers.

Conversations WithTwo former senior U.S. Department of Justice officials discuss

the evolution and expanded use of settlement mechanisms that federal prosecutors employ to resolve white-collar

criminal enforcement matters prior to trial.

On the MeritsTwo attorneys debate whether the U.S. Court of Appeals for

the Ninth Circuit should affirm a district court’s decision to dismiss an Alien Tort Statute complaint because the

allegedly offending activity did not sufficiently “touch and concern” the United States.

Publications in eight

distinct formats are

marketed to diverse

audiences ranging from

business leaders to

Members of Congress

and the media.

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Working PaperRecent U.S. Supreme Court precedent, statutory

interpretation principles, and due-process considerations all militate in favor of judges’

imposing the higher clear-and-convincing standard of proof to establish civil liability under the False

Claims Act when the federal government declines to intervene in a qui tam relator’s case.

Contemporary Legal NotesA concise but comprehensive guidebook for

navigating the daunting challenges of managing data privacy and security compliance in today’s

high-risk legal environment.

MonographAn experienced practitioner sheds some critically

needed light on the current state of the doctrine of federal preemption by analyzing U.S. Supreme Court cases under Chief Justice Roberts and fore-

casting trends that policymakers and regulated entities should anticipate.

Washington Legal Foundation took up an important piece of original litigation in 2016, Gordon v. Consumer Financial Protection Bureau. WLF’s cert petition on Mr. Gordon’s behalf was still pending at the U.S. Supreme Court as the annual report went to press, but it stands a good chance of being granted given the significant issues at stake.

Created by the massive Dodd-Frank Act, the Consumer Financial Protection Bureau (CFPB) is a consumer financial regulatory and enforcement agency that unified responsibility for 19 federal consumer protection statutes under one authority. Since the agency’s inception, WLF has heard a growing number of complaints about the aggressive posture taken by CFPB on both the enforcement and regulatory fronts.

Director Richard Cordray was recess-appointed to run CFPB in January, 2012. However, a unanimous Supreme Court decision in 2014 held that the Senate was not in recess on the day of Cordray’s purported recess appointment, thereby invalidating it and calling into question all of the official actions he took prior to his July 2013 Senate confirmation.

During the period when CFPB did not have a properly appointed director, it brought an enforcement action against California attorney Chance Gordon, which resulted in a massive fine. WLF is helping Mr. Gordon fight back against the agency on two constitutional grounds. First, WLF argues that Director Cordray’s attempt to retroactively validate, via a brief blanket declaration, every illegal action he took during his 18-month recess appointment was inadequate. Second, WLF contends that CFPB never had standing to bring an enforcement action against Mr. Gordon, because the agency lacked a valid director the entire time it was pursuing the case against him in district court.

WlF takes on the CFpB: Gordon v. Consumer Financial Protection Bureau

The U.S. Court of Appeals for the Ninth Circuit had already rejected Mr. Gordon’s arguments when he sought pro bono legal help from WLF. Once he came on board as a client, WLF began to prepare his petition for certiorari to the Supreme Court. Surprisingly, on its own initiative, the Ninth Circuit requested that Mr. Gordon file a request for rehearing en banc. WLF filed Mr. Gordon’s request, but the court denied it. WLF then petitioned the Supreme Court to review and reverse the Ninth Circuit’s decision this past November.

The Gordon case has garnered positive attention in the press and the legal community. Several prominent financial-services law blogs devoted in-depth commentaries to the Gordon petition, and the Los Angeles Daily Journal published an op-ed by WLF discussing the case. Influential national business groups and policy organizations filed supportive amicus curiae briefs with the Supreme Court.

No. 16-

IN THE

Supreme Court of the United States

CHANCE E. GORDON,Petitioner,

v.

CONSUMER FINANCIAL PROTECTION BUREAU,Respondent.

On Writ of Certiorari to theUnited States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

RICHARD A. SAMP (Counsel of Record)CORY L. ANDREWSMARK S. CHENOWETHWASHINGTON LEGAL FOUNDATION2009 Mass. Ave., NWWashington, DC 20036(202) 588-0302rsamp@wlf.org

November 17, 2016 Counsel for Petitioner

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Administrative procedure

Chevron Doctrine Is Opposed to Administrative Procedure Act’s Text and Legislative HistoryBy Jeffrey Bossert Clark, Sr., Kirkland & Ellis LLP

America’s Administrative State: Tracking the Origins and Consequences of Judicial Deference to Federal AgenciesBy Richard O. Faulk, Alexander Dubose Jefferson & Townsend LLP

Why Chevron Deference for Hybrid Statutes Might Be a No-NoBy Jeffrey B. Wall and Owen R. Wolfe, Sullivan & Cromwell LLP

Arbitration Rights

Will the High Court Resolve Circuit Split on Class Waivers in Employee Arbitration Agreements?By Mark A. Perry and Kevin Barber, Gibson, Dunn & Crutcher LLP

CFPB’s Proposed Arbitration Rule Benefits Class-Action Lawyers at the Expense of ConsumersBy Alan S. Kaplinsky and Mark J. Levin, Ballard Spahr LLP

Asbestos & toxic torts

Maritime Law Provides No Safe Harbor for Asbestos Plaintiffs Seeking Nonpecuniary DamagesBy Brian J. Schneider, Moran Reeves Conn PC

Meticulous Predominance Assessment Sinks Pharma Marketing RICO Class ActionBy Lindsay D. Breedlove, Pepper Hamilton LLP

Business Civil liberties & Criminal liability

Inquiring into the Expanded Use of Deferred- and Non-Prosecution AgreementsFeaturing The Honorable Jay B. Stephens, Kirkland & Ellis LLP, and The Honorable Larry D. Thompson, University of Georgia School of Law

Apprendi Applies to White-Collar Defendants TooBy David Debold, Gibson, Dunn & Crutcher LLP

Federal Civil Investigative Documents Held Admissible for Defendant in White-Collar Criminal TrialBy Joseph Perry, Baker Botts LLP

Dramatic Increases in Federal Civil Fines Take Effect By Jeffrey D. Ayer and Mi Hyun (Angela) Yoon, WilmerHale

On the Merits: Doe I v. Cisco Systems, Inc.By John B. Bellinger, III, Arnold & Porter LLP, and Rick Herz, EarthRights International

Civil Subpoenas Unilaterally Issued by State Attorneys-General Are Constitutionally SuspectBy Professor Philip Hamburger, Columbia Law School

The Federal Lacey Act Exemplifies the Overcriminalization of Free Enterprise By C. Jarrett Dieterle, Esq.

Corporate Employees at Risk: Strategic and Practical Implications of the Yates MemoBy Mary Beth Buchanan and Jovana Crncevic, Bryan Cave LLP

Court Foils Attempt by Plaintiffs’ Lawyers to Broaden Crime-Fraud Exception to Attorney-Client PrivilegeBy Thomas E. Spahn, McGuireWoods LLP

Civil Justice Reform

California Supreme Court Clarifies Broader Application of State’s Anti-SLAPP LawBy Thomas R. Burke, Davis Wright Tremaine LLP

Legal Fact and Fiction: The Contraction and Expansion of Florida’s Collateral-Source Rule By George Meros, Jr., Justin Marshall and Ashley Hoffman, GrayRobinson, PA

Fourth Circuit Misconstrues North Carolina’s Statute of Repose—and State’s High Court Cannot HelpBy Adam H. Charnes and Chris W. Haaf, Kilpatrick Townsend & Stockton LLP

Oregon Supreme Court Preserves State Damages Cap—and the Legislature’s Law-Making AuthorityBy James N. Westwood, Stoel Rives LLP

Class-Action litigation

Comments Needed on Proposed Amendments to Federal Class Action RulesBy Christopher P. Gramling, Eli Lilly and Company

On the Merits: Cahen v. Toyota Motor CorporationBy Frank Cruz-Alvarez, Shook, Hardy & Bacon LLP, and Alan Butler, Electronic Privacy Information Council

In California, the “Reasonable Person” Still Helps Consumer Class-Action DefendantsBy Rick L. Shackelford, Greenberg Traurig LLP

Sixth Circuit’s Bright-Line Rule for Removal Deadline under CAFA Embraces TrendBy Richard Hertling and Brendan Parets, Covington & Burling LLP

After Campbell-Ewald v. Gomez, Can a Complete Settlement Offer Moot a Potential Class Action?By Christopher Roach, Adams and Reese LLP

Could Trio of Ninth Circuit Class Actions Force Supreme Court to Resolve Ascertainability Circuit Split?By David E. Sellinger and Aaron Van Nostrand, Greenberg Traurig LLP

Ninth Circuit’s Daniel v. Ford Motor Company Decision Dents Defendants’ Ability to Defend California Consumer Class Actions By Allison R. McLaughlin and Cedric D. Logan, Wheeler Trigg O’Donnell LLP

Commercial Speech

First Amendment in Flux: Supreme Court Clarification Needed on Compelled Commercial SpeechBy Michael A. Walsh and Katherine McGahey, Strasburger & Price LLP

Ruling on Utility Poles Mandatory Warning Protects Against Forced SpeechBy Gregory S. Chernack, Hollingsworth LLP

Reed v. Town of Gilbert Portends a Positive Sign for First Amendment Arguments Regarding Off-Label SpeechBy James M. Beck, Lisa M. Baird, Raffi Kassabian, and Gillian H. Clow, Reed Smith LLP

Communications

FCC’s Use of “Fact Sheets” Short-Circuits the Administrative Procedure ActBy Brett A. Shumate and Dwayne D. Sam, Wiley Rein LLP

Consumer protection Regulation

Data Privacy and Security: A Practical Guide for In-House CounselBy David Zetoony, Bryan Cave LLP. Foreword by Michael Kaplan, Red Robin Gourmet Burgers, Inc.

Confronting Online Privacy Regulation: Time to Defend the First Amendment By Thomas R. Julin, Hunton & Williams LLP

FTC Intensifies Scrutiny of “Native Advertising”By John C. Greiner and Zoraida M. Vale, Graydon Head & Ritchey LLP

CFPB’s Systemic Regulation of Four Industries: Enforcing Broader Changes Via Consent OrderBy Stefanie H. Jackman and Daniel L. Delnero, Ballard Spahr LLP

Discovery process & procedure

At One-Year Anniversary, Cautious Optimism as New E-Discovery Rules Gain Some Traction By John J. Jablonski, Goldberg Segalla

Despite Advent of New E-Discovery Rules, Old Judicial Habits Still Infect Federal DecisionsBy John J. Jablonski, Goldberg Segalla

environmental Regulation & enforcement

Public-Nuisance Rulings Undermine National Clean Air Act Enforcement and Federal Preemption By Richard O. Faulk, Alexander Dubose Jefferson & Townsend LLP

Fighting the Frack Attack: The State of State Preemption EffortsBy Wayne D’Angelo and Travis Cushman, Kelley Drye & Warren LLP

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Legal Studies Publications

Court Uses Climate Change to Sharpen ESA’s Claws By Kirk B. Maag and Oliver F. Jamin, Stoel Rives LLP

How Fast is the FAST Act?: An Analysis of Reforms Streamlining the NEPA Review ProcessBy Cynthia L. Taub, Steptoe & Johnson LLP

expert evidence & Junk Science

In re Zoloft MDL Judge’s Rejection of Causation Testimony Provides Helpful Lessons for Bench and BarBy Victor E. Schwartz, Shook, Hardy & Bacon LLP

Food, Drug and Medical-Device law

USDA Rulemaking Will Determine Success of Disclosure Law on Genetically-Engineered FoodBy U.S. Congressman Mike Pompeo, 4th District of Kansas

The US v. Vascular Solutions Acquittal: Three Lessons for Targets of “Off-Label Promotion” EnforcementBy Jeffrey S. Bucholtz, Robert K. Hur, Michael R. Pauzé, and John C. Richter, King & Spalding LLP

Facteau Medical Device Convictions Illustrate FDA’s Unhealthy Control Over Off-Label SpeechBy Anthony J. Anscombe and Mary Beth Buckley, Sedgwick LLP

The First Amendment Does Not Undermine the Preemption of Medical-Device Failure-to-Warn SuitsBy Andrew Tauber, Mayer Brown LLP

New Jersey High Court Rejects Generic Preemption Defense When Label Updates “Unreasonably” DelayedBy Linda Pissott Reig and Alexandre H. Gapihan, Buchanan Ingersoll & Rooney PC

Sixth Circuit Affirms Impossibility Preemption of Branded-Drug Design-Defect ClaimsBy James M. Beck, Reed Smith LLP

Ninth Circuit Consumer Class-Action Ruling Signals Resurgence of Primary Jurisdiction Doctrine By David T. Biderman and Alisha C. Burgin, Perkins Coie LLP

FDA’s Revised Medical-Foods Policy Impedes Care and Violates the First Amendment By Sarah Roller and Katie Bond, Kelley Drye & Warren LLP

State “Unfair Trade Practice” Suits Undermine FDA Warning LettersBy Robert N. Weiner and R. Stanton Jones, Arnold & Porter LLP

General Jurisdiction

Contra Plaintiffs’ Bar, Registering to Do Business Does Not Create General Jurisdiction By Professor Mark Moller, DePaul University College of Law

Plaintiffs Cannot Skirt Daimler AG v. Bauman with “Pendent Jurisdiction” TheoryBy Eric L. Alexander, Reed Smith LLP

Government Contracting & False Claims Act

How Exclusion and Debarment Empower Prosecutors to Vastly Expand False Claims Act LiabilityBy Stephen J. Obermeier and Dylan Hix, Wiley Rein LLP

The Case for a Clear-and-Convincing Burden of Proof for False Claims Act Qui Tam RelatorsBy Stephen A. Wood, Chuhak & Tecson PC

Implied-Certification FCA Claims Post-Escobar: Three Appellate Court Cases May Show the WayBy Christopher W. Myers and J.W. Lafferty, Dentons

Intellectual property

Octane Fitness, Two Years On: How It Has Impacted Awards of Attorneys’ Fees in Patent CasesBy Nirav Desai and Lauren Johnson, Sterne Kessler Goldstein & Fox PLLC

Eluding the Patent Troll “Tax”: Strategies for Energy-Industry and Other Nascent NPE TargetsBy Stefani Shanberg and Eugene Marder, Wilson Sonsini Goodrich & Rosati PC

labor & employment law andoccupational Safety & Health

Labor Department’s Fiduciary Rule Tests First Amendment LimitsBy Donald M. Falk, Mayer Brown LLP and Professor Eugene Volokh, UCLA School of Law

OSHA and SEC Scrutiny of Whistleblower Treatment Expands Businesses’ Civil and Criminal Liability RisksBy Edward T. Ellis, Littler Mendelson PC

Workers’ Comp Case Before Pennsylvania High Court Could Weaken FranchisingBy William O. Mandycz, Morgan Lewis & Bockius LLP

Department of Labor Issues New Guidance on Determining Joint-Employer StatusBy Michael J. Lotito and Mike Asplen, Littler Mendelson PC

Eleventh Circuit Reins in NLRB’s Mischaracterization of Independent Contractors as “Employees”By John J. Park, Jr., Strickland Brockington Lewis LLP

New DOJ and DOL Reliance on Environmental Laws Lowers Bar for Workplace-Safety Criminal ProsecutionsBy Eric J. Conn, Conn Maciel Carey PLLC

property Rights

United States v. Sperrazza: An Appropriate Use of Federal Asset Forfeiture as Criminal PunishmentBy Courtney J. Linn, Orrick, Herrington & Sutcliffe LLP

Securities & Corporate Governance and the FCpA

NY High Court Ignores Preemption Defense to Martin Act, but US Supreme Court Offers Possible Path ForwardBy Robert A. McTamaney, Carter Ledyard & Milburn LLP

Eighth Circuit Affirms Strict Pleading Standard for Shareholder Derivative LawsuitsBy Professor Amy Deen Westbrook, Washburn University School of Law

Omnicare, Inc., One Year Later: Its Salutary Impact on Securities-Fraud Class Actions in the Lower Federal CourtsBy Douglas W. Greene and Claire Loebs Davis, Lane Powell PC

Will Trulia Drive “Merger Tax” Suits Out of Delaware?By Anthony Rickey, Margrave Law LLC, and Keola R. Whittaker, McGuireWoods LLP

NY State Attorney General’s Aggressive Use of Martin Act Revives Federal Preemption ObjectionBy Robert A. McTamaney, Carter Ledyard & Milburn LLP

High Court’s Amgen Ruling Reaffirms Heightened Pleading Standard for ERISA Stock-Drop SuitsBy Michael A. Valerio, Carlton Fields Jorden Burt PA

14 15

Commercial Free SpeechAs an ardent First Amendment supporter, WLF objects to government efforts to restrict speech—either by banning or compelling speech—without adequate constitutional justification. This year, in American Beverage Association v. San Francisco, WLF urged the U.S. Court of Appeals for the Ninth Circuit to enjoin enforcement of a San Francisco ordinance that requires advertisements for sodas and other sugary drinks to include prominent health warnings that link sugar consumption to obesity, diabetes, and tooth decay. WLF argued that requiring advertisers to convey the government’s controversial message (a message with which they disagree) violates their First Amendment rights. In a separate Ninth Circuit case, Retail Digital Network, LLC v. Prieto, WLF asked an en banc panel of that court to strike down a content-based California speech restriction that prohibits manufacturers from paying retailers to advertise alcoholic beverages in their stores.

personal JurisdictionIn a series of decisions over the past five years, the U.S. Supreme Court has indicated that a nonresident may not be made to answer claims in a state court unless they “arise out of or relate to” the nonresident’s activities in the forum State. Unfortunately, many state courts have not yet gotten the message. They continue to abet forum-shopping plaintiffs’ attorneys who seek to have all of their claims—regardless of where they arose—heard together in a single, hand-picked, plaintiff-friendly forum. WLF regularly pushes back against efforts by courts to exercise personal jurisdiction over out-of-state companies in matters having no connection with the state. For example, in Bristol-Myers Squibb Co. v. Superior Court, WLF asked the U.S. Supreme Court to overturn a state supreme court decision that permitted attorneys to aggregate claims arising from across the country in a single

proceeding. And in TC Heartland v. Kraft Foods, WLF urged the Court to prevent patent trolls from continuing to file nearly half the nation’s patent-infringement claims in a single Texas court.

Federal Administrative Agency overreachOnce again, WLF litigators—sometimes on behalf of our own clients, sometimes acting as amicus curiae—sought to shorten the reach of the federal government’s tentacles. In addition to WLF’s case against the Consumer Financial Protection Bureau (see p. 11), WLF successfully raised First Amendment objections to new disclosure requirements that the Department of Labor sought to impose on entities representing the management side of labor disputes. In National Federation of Independent Business v. Perez, the U.S. District Court for the Northern District of Texas granted WLF’s desire to see DOL’s so-called persuader rule permanently enjoined. Similarly, in such cases as Browning-Ferris Industries of California, Inc. v. NLRB, Murray Energy Corp. v. EPA, and Tennessee and North Carolina v. FCC, WLF urged federal courts to overturn agency regulations that claimed regulatory authority that Congress never granted.

In these and other areas, WLF served as a thoughtful counterweight to the shrill voices of self-appointed activists, self-important government bureaucrats, and the self-interested plaintiffs’ bar in key actions and proceedings where economic liberty interests were at stake.

WlF engages When It Counts MostWLF participated in 75 court cases and regulatory proceedings last year. WLF’s aggressive yet highly effective approach to advocacy helped us to obtain significant victories in well over a dozen high-profile cases, including five cert petitions that were granted by the Supreme Court in 2016 (Amgen Inc. v. Harris, Microsoft Corp. v. Baker, State Farm Fire & Casualty Co. v. U.S. ex rel. Rigsby, Ziglar v. Abassi, and TC Heartland LLC v. Kraft Foods Group Brands LLC). Because WLF does not focus narrowly on one or two niche issues, we can spread our attention across multiple fronts and then pivot quickly to concentrate our resources on emergent threats to free enterprise.

While our veteran attorneys are adept at mastering new areas of law as novel issues arise, they have amassed subject-matter expertise in several fields where problems recur, such as:

Class Actions/StandingWLF has long fought against excessive and improperly certified class-action lawsuits that result in forced settlements of frivolous claims. In Spokeo, Inc. v. Robins, the U.S. Supreme Court agreed with WLF that plaintiffs who have suffered no “concrete” injury should not be permitted to file class-action lawsuits, even if they can establish that the defendant committed some technical violation of the law. In other words, an individual’s professed interest in seeing that the law is obeyed is not enough by itself to maintain a lawsuit. In Microsoft v. Baker, WLF asked the Court to close a loophole that some plaintiffs’ lawyers have used to assert a right to take an immediate appeal from class-certification decisions, a right that is unavailable to class-action defendants.

1716

Litigating

Our litigation team,

with the help of scores

of prestigious law firms

nationwide, rigorously

monitors cases, actions,

and proceedings that

threaten the fundamental

rights of hard-working

Americans and the integrity

of the country’s legal system.

When the plaintiffs’ bar or

government agencies

interfere with those rights

in a manner we deem

unwarranted, WLF’s litigation

team does not hesitate to

challenge them in court.

“I am one of the defendant’s lawyers in the Oregon case, Figueroa v. BNSF, which will be argued in a couple of weeks. I thought that your brief was excellent.”

—W. Michael (Mick) Gillette, Shareholder, Schwabe, Williamson & Wyatt and former Justice, Oregon Supreme Court

1815

Microsoft Corporation v. BakerProtecting the Rights of Class-Action Defendants

A single plaintiff representing a large enough class of similarly situated individuals can browbeat corporate defendants into settling even frivolous lawsuits. Ordi-narily, if an appeals court denies discretionary review of a class-certification decision, plaintiffs who wish to appeal that decision must wait until after trial (just like defendants), so that all appealable issues can be heard at once. But the decision below in this case effectively granted plaintiffs (and only plaintiffs) a right to imme-diately appeal from an adverse class-certification deci-sion by strategically stipulating to dismiss their entire case with prejudice. WLF argued that the Ninth Cir-cuit’s decision encourages multiple, piecemeal appeals from a single lawsuit, wastes scarce judicial resources, and erodes the evenhanded administration of justice.

BNSF Railway Company v. Tyrrell Supporting Due-Process Limits on Personal Jurisdiction

WLF has long favored strict adherence to the Due Process Clause’s limitations on the judiciary’s exercise of personal jurisdiction over out-of-state defendants. In its seminal 2014 Daimler v. Bauman decision, the U.S. Supreme Court held that a plaintiff may not sue a corporate defendant in a state unless his claim arises there, the company is incorporated there, or the corporation’s principal place of business is there. The Montana Supreme Court carved out an exception to Daimler for suits brought under the Federal Employers’ Liability Act (FELA). In its brief successfully urging the Supreme Court to grant certiorari, WLF argued that the decision encourages forum shopping and deprives companies governed by FELA (such as railroads) of any assurance as to where their conduct will render them liable to suit.

Ashcroft v. TurkmenUpholding Qualified Immunity for Policymakers

WLF represented five former U.S. Attorneys General and two former FBI Directors in this brief successfully

urging certiorari (sub. nom. Ziglar v. Abbasi). WLF also filed a brief on the merits. This case threatens to expose

former federal officials to tort liability based on their official conduct in the wake of the 9/11 terrorist attacks.

Such efforts to hold officeholders personally liable for official actions they took are highly disruptive and

likely to impair their performance. Qualified immunity protects senior government officials from lawsuits

when no “clearly established” case law holds that the officials’ actions violated plaintiffs’ constitutional rights.

WLF argued that qualified immunity is particularly appropriate when the plaintiffs’ claims touch on

national security issues, thereby potentially disrupting efforts to prevent future terrorist attacks.

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“Thank you again for WLF’s support of our Supreme Court Petition ... It was very gratifying to have the Supreme Court reverse the Circuit Court’s decision and a great victory for companies in this type of litigation. The efforts of WLF were certainly appreciated and contributed to our success!”

—Senior Associate General Counsel, Fortune 200 company.

notable Cases

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American Beverage Association v. City and County of San FranciscoProtecting Commercial Free Speech Rights

The First Amendment protects not only the right to speak but also the right not to speak. In support of that constitutional limit on compelled speech, WLF asked the Ninth Circuit Court of Appeals to enjoin a controversial ordinance that requires advertisements for sugar-sweetened beverages to include health warnings that denigrate the very product being advertised. WLF explained that if a local government wishes to supply its citizens with additional information about sugar-sweetened beverages, it is perfectly free to do so. But absent any evidence that these advertisements deceive customers, WLF argued, the government may not compel soft-drink manufacturers to include ominous health warnings in their own truthful advertisements.

United States ex rel. Harman v. Trinity Industries, Inc.Limiting Liability under the False Claims Act

The False Claims Act (FCA) aims to root out actual fraud against the government, not to police compliance with every minute contractual and regulatory provision imposed on government contractors. In this important Fifth Circuit appeal, WLF argued that when senior Executive Branch officials express satisfaction with a contractor’s performance, self-appointed private attorneys-general may not second-guess that determination. WLF’s brief noted that the FCA only permits recovery for making “false statements” if they were material to the government’s decision to pay the contractor’s claims. In this case, when the relator alerted federal highway administrators that the defendant allegedly had been selling non-compliant safety guardrails, those administrators reviewed the allegations and ultimately determined that the government had received the product for which it bargained.

Murray Energy Corp. v. Environmental Protection Agency

Combating Regulatory Overreach

The rule of law suffers whenever federal administrative agencies exceed their regulatory authority, as the

EPA did in this case. Congress authorized EPA to regulate the “waters of the United States.” But EPA’s

rule would regulate millions of acres of bone-dry land, including vast sections of the desert Southwest. In this

consolidated appeal, WLF argued that EPA failed to provide interested parties with adequate notice of its

proposed regulations and a meaningful opportunity to participate in the rulemaking process. By so doing, EPA

ran roughshod over important procedural safeguards required by the Administrative Procedure Act (APA). EPA’s final rule further violates the APA, because the agency arbitrarily and capriciously failed to provide a

“satisfactory explanation” for its actions.

“We cannot thank WLF enough for your amicus brief in this case and the contribution you made, yet again, in winning an important appeal! As the author of the dissent said in oral argument, our side won on the amicus front!”

—Robert M. (Randy) Roach, Jr., Partner, Roach & Newton LLP, Dallas, TX

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The Supreme Court’s decision to limit RICO’s civil-liability provision to U.S.-based disputes handed a victory to WLF. Our brief argued that allowing foreign litigants to invoke RICO for the purpose of bringing their foreign disputes into U.S. courts would impose unwarranted litigation costs on multi-national businesses and would coerce defendants into unfair settlements.

Spokeo, Inc. v. RobinsDenying Standing to Uninjured PlaintiffsIn a major victory for WLF, the Supreme Court ruled that plaintiffs who do not suffer a “concrete” injury lack standing to file a federal-court lawsuit, even if they could establish that the defendant violated the law. The Court agreed with WLF that an individual’s abstract interest in seeing that the law is obeyed is insufficient to provide him with the requisite standing to sue. The plaintiff in this case alleged that a commercial website violated the Fair Credit Reporting Act because not all the information about the plaintiff contained on the website was fully accurate. But the Court held that the plaintiff lacked standing in the absence of evidence that the minor inaccuracies injured him in some “concrete” way. Filing such “no injury” lawsuits, and then seeking certification as a class action, has become a favorite ploy of the plaintiffs’ bar.

Rains v. Stayton Builders Mart, Inc.Upholding State Tort Reform LegislationMany states have adopted tort reform legislation designed to impose reasonable limits on damages awarded to tort claimants. WLF has been at the forefront of efforts to uphold such laws in the face of challenges by the plaintiffs’ bar. In a victory for WLF, the Oregon Supreme Court upheld an Oregon statute that limits a tort plaintiff to no more than $500,000 in noneconomic damages—a category that includes such items as pain and suffering. The court agreed with WLF that the Jury Clause of the Oregon Constitution does not grant plaintiffs a constitutional right to recover the full dollar amount of injuries the jury estimated them to have suffered.

National Federation of Independent Business v. PerezStriking Down Labor Department’s Persuader RuleFederal labor law has long required an employer, in the days leading up to a union representation election, to disclose to employees a limited amount of information regarding its electioneering efforts. But the U.S.

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Department of Labor’s recently adopted “Persuader Rule” vastly expands those disclosure requirements, extending them to lawyers and other consultants who have no direct contact with employees. In a victory for WLF, the U.S. District Court for the Northern District of Texas issued a permanent injunction against enforcement of the new rule. WLF’s brief argued that the Persuader Rule violates the First Amendment because it compels speech yet serves no substantial government interest.

Universal Health Services, Inc. v. U.S. ex rel. Escobar Imposing Limits on False Claims Act Liability

WLF has long sought to establish reasonable limits on liability imposed under the federal False Claims Act (FCA). WLF argues that Congress adopted the FCA to fight outright fraud by government contractors, not to permit self-proclaimed whistleblowers to seek bounties for alleged breaches of contract. The Supreme Court’s decision in this case should help rein in unwarranted FCA lawsuits filed by private individuals. Although hardly a complete victory, the Court did tighten the requirement that plaintiffs show that an allegedly false statement was “material” to the government’s decision to pay a contractor’s claim. It does not suffice, the Court held, merely to show that a contractor sought payment despite having breached a contractual provision.

State of Tennessee and State of North Carolina v. Federal Communications CommissionRequiring Federal Agencies to Respect State Sovereignty

The Federal Communications Commission (FCC) thought it would be a good idea if municipally owned broadband Internet service providers expanded their services. So it adopted a rule barring state governments from restricting such expansion. In a victory for WLF, the U.S. Court of Appeals for the Sixth Circuit struck down the rule, holding that FCC lacked statutory authority to tell states how to structure and manage their local governments. The court agreed with WLF that before a federal agency may preempt state law in this manner, Congress must issue a “clear statement” authorizing preemption.

TC Heartland LLC v. Kraft Foods Group Brands LLCPutting a Stop to Forum-Shopping by Patent TrollsIn a victory for WLF, the U.S. Supreme Court agreed to review an appeals court decision that construes federal patent venue statutes so broadly that many nationwide

Flagg v. Stryker Corp.The Right to Remove Cases to Federal CourtWhen an out-of-state defendant is sued in state court, it generally has the right to have the case transferred (“removed”) to the local federal district court. WLF has long supported that right because it prevents plaintiffs’ attorneys from stacking the deck by arranging for their lawsuits to be heard in a state courtroom that, they believe, will favor local plaintiffs. In a victory for WLF, the Fifth Circuit, sitting en banc, issued a decision that strongly reaffirmed removal rights. The Court agreed with WLF that a plaintiff may not defeat removal by adding a defendant whose inclusion would eliminate diversity jurisdiction if the plaintiff does not possess a valid claim against the added defendant at the time of removal.

Amgen, Inc. v. HarrisPreventing Unwarranted Liability for FiduciariesThe Employee Retirement Income Security Act (ERISA) establishes federal rules designed to protect the pensions of American workers. At the same time, ERISA imposes reasonable restrictions on lawsuits filed against fiduciaries that make good-faith decisions regarding the operation of pension plans. In a victory for WLF, the Supreme Court held that a plaintiff does not establish a legal claim simply by alleging that a “prudent fiduciary” might have made a different investment decision.

RJR Nabisco, Inc. v. The European CommunityExtraterritorial Application of RICO ActThe Supreme Court held in this case that plaintiffs may not file damage claims under the federal Racketeer Influenced and Corrupt Organizations Act (RICO) based on alleged activities that took place overseas. Congress adopted RICO as a tool for fighting organized crime, but plaintiffs have repeatedly misused the law by invoking it in garden-variety commercial disputes—thereby taking advantage of RICO’s extremely generous remedial provisions.

Other Key Victories & Pending Litigation

businesses would be subject to suit in virtually any federal district court. WLF’s brief urging the Court to grant review argued that the appeals court’s decision ignored the Supreme Court’s longstanding recognition of strict statutory limits on venue in patent cases. The decision raises serious due process concerns and encourages rampant forum-shopping by “patent trolls,” entities that file numerous, inappropriate patent-infringement cases in plaintiff-friendly venues.

Bristol-Myers Squibb v. Superior CourtUpholding Due Process Limits on Personal Jurisdiction

In 2014, the U.S. Supreme Court held in Daimler AG v. Bauman that an out-of-state corporation like BMS may not be sued unless the claim being sued on has a substantial connection with the state. Disregarding that edict, the California Supreme Court ruled that 575 nonresident plaintiffs could sue BMS in California. In its brief asking the U.S. Supreme Court to review and overturn the decision below, WLF argues that the lower state courts in this case have refused to abide by the Daimler precedent, which recognized constitutional limits on the authority of state courts to exert personal jurisdiction over out-of-state defendants. The Supreme Court granted cert in this case as WLF’s annual report went to press.

Browning-Ferris Industries of California, Inc. v. National Labor Relations BoardPreserving the Traditional Definition of a Joint Employer

The U.S. Court of Appeals for the District of Columbia Circuit is considering whether to overturn the National Labor Relations Board’s new employment standard under which regulated entities can be deemed “joint employers” of another company’s employees—and then held fully liable for any obligations owed to those employees. NLRB’s new standard—applied here to a firm that outsourced work in its recycling facility—overturned a 32-year-old standard, under which companies are not deemed joint employers unless they exercise direct and immediate control over the other company’s employees. WLF warned that the vague new standard deprives firms of the ability to accurately assess the circumstances under which their activities will create liability.

Figueroa v. BNSF Railway Co.Oregon Supreme CourtLimiting personal jurisdiction over defendants

Flagg v. Stryker Corp.U.S. Court of Appeals for the Fifth Circuit (en banc)Supporting right to remove lawsuits to federal court

Fox Television Stations, Inc. [Plaintiffs-Appellants] v. FilmOn X, LLCU.S. Court of Appeals for the Ninth CircuitSupporting enforcement of copyrights

Fox Television Stations, Inc. [Plaintiffs-Appellees] v. FilmOn X, LLCU.S. Court of Appeals for the DC CircuitSupporting enforcement of copyrights

GlaxoSmithKline LLC v. Allied Services Division Welfare FundU.S. Supreme CourtOpposing expansive interpretation of RICO

Gordon v. Consumer Financial Protection BureauU.S. Court of Appeals for the Ninth CircuitOpposing retroactive ratification of invalid agency actions

Gordon v. Consumer Financial Protection BureauU.S. Supreme CourtOpposing retroactive ratification of invalid agency actions

Graham v. R.J. Reynolds Tobacco Co.U.S. Court of Appeals for the Eleventh CircuitSupporting defendants’ rights to mount a full defense

Grocery Mfrs. Assoc. v. SorrellU.S. Court of Appeals for the Second CircuitOpposing mandatory food labeling for GMO content

In re Flonase Antitrust Litig.U.S. Court of Appeals for the Third CircuitSupporting enforcement of class-action settlements

In re Loestrin 24 Fe Antitrust Litig.U.S. Court of Appeals for the First CircuitOpposing antitrust liability for settling drug-patent lawsuits

In re TC Heartland, LLCU.S. Court of Appeals for the Federal CircuitOpposing forum shopping in patent-infringement actions

In re Zoloft Products Liability Litig.U.S. Court of Appeals for the Third CircuitSupporting exclusion of junk science from the courtroom

Jibe Audio, LLC v. Beats Electronics, LLCCalifornia Supreme CourtSupporting traditional parol evidence rule

Johnson & Johnson v. ReckisU.S. Supreme CourtSupporting preemption of drug “failure to warn” claims

Jones v. ConAgra Foods, Inc.U.S. Court of Appeals for the Ninth CircuitOpposing class-action certification in food-labeling case

Kane v. Chobani, Inc.U.S. Court of Appeals for the Ninth CircuitOpposing frivolous food-mislabeling claims

Labnet Inc. v. Department of LaborU.S. District Court for the District of MinnesotaOpposing Department of Labor’s “persuader rule”

Lorillard Inc. v. Food and Drug AdministrationU.S. Court of Appeals for the DC CircuitSupporting challenge to biased federal advisory committee

MetLife, Inc. v. Financial Stability Oversight CouncilU.S. Court of Appeals for the DC CircuitOpposing FSOC’s misuse of “too big to fail” designation

Washington Legal Foundation litigates at every level of the judicial system, from trial courts to the U.S. Supreme Court. WLF also regularly initiates, or intervenes in, administrative proceedings to promote regulatory reform. WLF participated in more than 75 court cases and regulatory proceedings during 2016. Briefs and regulatory comments filed by WLF are available on our website at www.wlf.org.

American Beverage Assoc. v. San FranciscoU.S. Court of Appeals for the Ninth CircuitOpposing compelled speech

Amgen, Inc. v. HarrisU.S. Supreme CourtOpposing expanded duties for ERISA fiduciaries

Apple, Inc. v. United StatesU.S. Supreme CourtOpposing unwarranted antitrust enforcement

Associated Builders & Contractors of Arkansas v. PerezU.S. District Court for E.D. Ark.Opposing Department of Labor’s “persuader rule”

Al Bahlul v. United StatesU.S. Court of Appeals for the DC Circuit (en banc)Supporting use of military commissions to try suspected terrorists

Black & Decker (U.S.), Inc. v. SD3, LLCU.S. Supreme CourtSupporting stricter federal civil pleading standards

Bristol-Myers Squibb Co. v. Superior CourtCalifornia Supreme CourtLimiting personal jurisdiction over defendants

Bristol-Myers Squibb Co. v. Superior CourtU.S. Supreme CourtLimiting personal jurisdiction over defendants

Browning-Ferris Industries of California, Inc. v. National Labor Relations BoardU.S. Court of Appeals for the DC CircuitOpposing NLRB’s new “joint employer” rule

BNSF Railway Co. v. TyrrellU.S. Supreme CourtLimiting personal jurisdiction over defendants

Campbell-Ewald Co. v. GomezU.S. Supreme CourtSupporting dismissal of fully compensated claims

Casey v. Kaiser Gypsum Co.California Supreme CourtSupporting limits on punitive damages

Chevron v. DonzigerU.S. Court of Appeals for the Second CircuitSupporting right to challenge fraudulent court judgments

Deere & Co. v. New HampshireU.S. Supreme CourtOpposing State’s abrogation of contract rights

Dow Chemical Co. v. Industrial Polymers, Inc.U.S. Supreme CourtOpposing certification of classes including uninjured members

Exxon Mobil Corp. v. New HampshireU.S. Supreme CourtOpposing tort claims that conflict with federal law

FCA US LLC v. The Center for Auto SafetyU.S. Supreme CourtDefending use of protective orders

Litigation and Regulatory Reform

2524

Tyson Foods, Inc. v. BouaphakeoU.S. Supreme CourtOpposing “trial by formula” class-action certification

United States v. ClayU.S. Court of Appeals for the Eleventh CircuitSupporting mens rea requirement in criminal prosecutions

United States v. DeCosterU.S. Court of Appeals for the Eighth CircuitOpposing incarceration under Responsible Corporate Officer doctrine

United Student Aid Funds, Inc. v. BibleU.S. Supreme CourtUrging reconsideration of Auer deference doctrine

U.S. ex rel. Harman v. Trinity Industries, Inc.U.S. Court of Appeals for the Fifth CircuitSupporting limits on False Claims Act liability

U.S. Telecom Association v. Federal Communications CommissionU.S. Court of Appeals for the DC CircuitOpposing FCC’s burdensome “Net Neutrality” rule

Universal Health Services, Inc. v. U.S. ex rel. EscobarU.S. Supreme CourtSupporting limits on “implied certification” doctrine

Ziglar v. AbbasiU.S. Supreme Court(cert. petition and merits amicus briefs)Supporting qualified immunity for senior government officials

In re: Centers for Disease Control and PreventionOpposing proposed guidelines for opioid prescriptions

In re: Consumer Financial Protection BureauOpposing proposed ban on mandatory arbitration agreements

In re: Consumer Product Safety Commission Urging revision of CPSC rules governing adjudicative proceedings In re: Federal Communications CommissionUrging reconsideration of relaxation of confidentiality rules

In re: Federal Communications CommissionOpposing proposed restrictions on ISP marketing

In re: Food and Drug AdministrationUrging adoption of uniform definition of “natural” foods

In re: Food and Drug AdministrationUrging relaxation of FDA restrictions on off-label speech

In re: Food and Drug AdministrationUrging revision of rules governing 510(k) medical devices

In re: Food and Drug AdministrationOpposing FDA efforts to increase tort suits against generic drug companies

Microsoft Corp. v. BakerU.S. Supreme Court(cert. petition and merits amicus briefs)Opposing interlocutory review of class-certification orders

Murray Energy Corp. v. Environmental Protection AgencyU.S. Court of Appeals for the Sixth CircuitOpposing EPA’s expansive definition of “waters of the U.S.”

National Federation of Independent Business v. PerezU.S. District Court for N.D. Tex.Opposing Department of Labor’s “persuader rule”

National Labor Relations Board v. SW General, Inc. U.S. Supreme CourtSupporting limits on use of vacancy appointment powers

Nestlé U.S.A., Inc. v. Doe IU.S. Supreme CourtOpposing aiding and abetting liability under Alien Tort Statute

Ortho-McNeil-Janssen Pharms., Inc. v. South CarolinaU.S. Supreme CourtUrging First Amendment protection for truthful commercial speech

Rains v. Stayton Builders Mart, Inc.Oregon Supreme CourtSupporting statutory cap on noneconomic damages

Retail Digital Network v. PrietoU.S. Court of Appeals for the Ninth CircuitOpposing commercial speech restrictions

RJR Nabisco, Inc. v. The European CommunityU.S. Supreme CourtOpposing extraterritorial application of RICO

Robinson v. Pfizer, Inc.U.S. Court of Appeals for the Eighth CircuitSupporting right to remove lawsuits to federal court

SCA Hygiene Products v. First Quality Baby Products, LLCU.S. Supreme CourtSupporting time limits on stale patent-infringement claims

SmithKline Beecham Corp. v. King Drug Co. of Florence, Inc.U.S. Supreme CourtOpposing antitrust liability for settling drug-patent lawsuits

Spokeo, Inc. v. RobinsU.S. Supreme CourtOpposing class-action lawsuits by uninjured plaintiffs

State Farm Fire & Cas. Co. v. U.S. ex rel. RigsbyU.S. Supreme Court(cert. petition and merits amicus briefs)Supporting enforcement of False Claims Act’s “seal” provision

Suttner v. Crane Co.New York Court of AppealsOpposing liability for products made by other manufacturers

TC Heartland, LLC v. Kraft Foods Group Brands LLCU.S. Supreme CourtOpposing forum shopping in patent-infringement actions

Tennessee and North Carolina v. Federal Communications CommissionU.S. Court of Appeals for the Sixth CircuitOpposing FCC efforts to commandeer state government actions re municipal broadband

T.H. v. Novartis Pharms. Corp.California Supreme CourtOpposing liability for products made by other manufacturers

Timbervest LLC v. Securities and Exchange CommissionU.S. Court of Appeals for the DC CircuitSupporting limitations period for SEC enforcement actions

26 27

“It’s not an overstatement to say that but for WLF we would not be in the relatively favorable position that we’re in with respect to First Amendment case law developments in FDA regulation.”

—Coleen Klasmeier, Partner, Sidley Austin LLP, Washington, DC

Washington Legal Foundation’s Civic Communi-cations Program not only supports and comple-ments our litigation and publishing initiatives, it stands on its own as an effective instrument for advancing WLF’s public-interest mission. Our le-gal studies publications permit longer, substantive analyses of a problem, but WLF’s communications capability enables us to shape debates more imme-diately with timely blog posts, incisive op-eds, and rapid-response engagement with the media. The variety and flexibility of our public relations tools also allow us to scale our response to emergent lawsuits and legal policy developments according to the nature, scope, and duration of any threat.

This past year WLF’s editorials educated the public regarding a number of key Supreme Court cases in which we filed amicus briefs. In addition, we brought attention to WLF’s original litigation in Gordon v. Consumer Financial Protection Bureau, a case that the Supreme Court could use to enforce the strictures of the Constitution’s Appointments Clause. The Los Angeles Daily Journal published op-eds from WLF on the Gordon litigation and on our amicus brief in Ziglar v. Abbasi. WLF filed the latter brief on behalf of five former U.S. Attorneys-General and two former FBI Directors in urging qualified immunity for policymakers responding to the 9/11 terrorist attacks.

The WLF Legal Pulse, our blog, continues to engage new audiences with timely commentary on high-stakes legal debates. This year, our most popular blog post (an argument about enforcing limits on the president’s appointment power) reached over 70,000 readers when cross-posted at Forbes.com. Another cross-posted article reached more than 10,000 Forbes.com readers in less than two days with an argument that the federal govern-ment should drop its criminal drug-trafficking case against FedEx. Shortly thereafter, the government took WLF’s advice and dropped the case.

WlF programmingIn WLF’s in-house media facility, we host con-cise, informative Media Briefing and Web Seminar programs on current legal issues to educate key decision makers and opinion leaders. We broadcast installments of both programs live through WLF’s website, and we then offer them as convenient, on-demand video files in our webcasting archive and on our YouTube channel.

In 2016, WLF continued our decades-long practice of assessing the U.S. Supreme Court’s free-enter-prise docket with Media Briefings corresponding to the beginning of the new October Term, the Court’s “mid-term” break in February, and the term’s com-pletion in June. Those briefings featured some of the legal profession’s leading appellate advocates and scholars, many of whom argued cases before the Court this year.

Additionally, WLF held a briefing in October on the Federal Communications Commission’s refusal to abide by statutory and constitutional limits placed on its authority, which featured sitting FCC Com-missioner Ajit Pai and former FCC Commissioner (and WLF Legal Policy Advisory Board member) Harold Furchtgott-Roth.

Media outreachIn addition to writing blog posts and placing op-eds, WLF and its attorneys shape the coverage of quickly emerging discussions and longer-term strategic debates by commenting directly to print and broadcast media. By getting WLF’s views and quotes into widely read articles or widely distrib-uted web/radio/TV programs, we can advance the public’s understanding and opinion of high-profile cases and legal policy matters. Via targeted outreach to trade publications, legal journals, and other select media, WLF’s expert commentary becomes sought after widely—and our commentary often gets amplified in both traditional and new media.

For example, this year WLF appeared on CNBC’s Nightly Business Report and informed their longtime Washington Correspondent Hampton Pearson’s coverage of the 2016 Supreme Court fall term. WLF’s attorneys also appeared on various programs including The Ezra Levant Show in Canada, the Center for Individual Freedom’s Freedomcast that was syndicated on various radio stations, and on Federalist Society teleforums and podcasts.

Consult page 34 to see a full list of news outlets that sought insight from WLF attorneys in their legal news coverage this past year.

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Communicating

WLF’s Civic Communications

Program equips champions

of free enterprise with the

scholarly, timely, and

pertinent information in

print and online that they

need to remain effective

advocates. We believe that

knowledge empowers

citizens nationwide to

recognize and respond

to threats to their

individual liberties.

“I’ve been practicing law since 1987, and Mr. Spahn’s presentation [at WLF] today may have been the most informative and useful I’ve experienced. Thanks very much.”

—F. Charles (Chip) Marionneaux, Litigation Counsel, Westlake Chemical Corp.

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Legal and policy debates emerge and advance today at a very rapid pace. To remain an effective advocate, WLF must communicate our message in a timely fashion through new media in addition to continuing our traditional education and advocacy. WLF publications were referenced, and our attorneys were frequently quoted, at prominent online sites such as SCOTUSBlog.com, HowAppealing.com, the Daily Signal, Business Insider, Law.com, Law360.com, and Overlawyered.com in 2016.

Our in-house blog, the WLF Legal Pulse (wlflegalpulse.com) publishes regular contributions from WLF attorneys and facilitates occasional invited posts from private practitioners, academics, law students, and others as guest contributors. In 2016, we published 105 blog commentaries, 48 of which were authored pro bono by guest contributors.

Among our guest contributors, we are honored by the involvement of seven attorneys from major law firms and one from a leading academic institution who have volunteered to cover specific topic areas for the blog. We happily acknowledge these “Featured Expert Contributors” below:

• Professor Stephen M. Bainbridge, UCLA School of Law (Corporate Governance/Securities Law)

• Samuel B. Boxerman, Sidley Austin LLP (Environmental Law and Policy)

• Frank Cruz-Alvarez, Shook, Hardy & Bacon LLP (Civil Justice/Class Actions)

• Richard O. Faulk, Alexander Dubose Jefferson & Townsend LLP (Complex Serial and Mass-Tort Litigation)

WLF Advocacy and Outreach Through Social Media

• Jeffri A. Kaminski, Venable LLP (Intellectual Property—Patents)

• Andrea Agathoklis Murino, Goodwin Procter LLP (Antitrust—FTC)

• Anthony W. Swisher, Squire Patton Boggs LLP (Antitrust—DOJ)

• Evan M. Tager, Mayer Brown LLP (Expert Evidence)

WLF continued our blog publishing relationship with Forbes in 2016. Forbes.com maintains a contributor site within its network of blogs for WLF attorneys’ commentaries (Forbes.com/sites/wlf). The site exposed each staff-authored post to Forbes.com’s vast readership and exponentially increased the appearance of our online advocacy in web searches, thereby helping widen WLF’s impact on legal debates.

Additionally, WLF’s presence on Twitter continues to grow and engage new audiences. We recently replaced our old Twitter handle with the much simpler @WLF. The feed is sought after by a steadily growing, influential list of thought leaders, who track WLF’s latest publications, briefs, regulatory filings, blog posts, and programs. WLF also connects with new audiences and allies on other social media platforms, such as Facebook and LinkedIn.

Speakers Edward B. Berg, Sanofi US

Alex J. Brackett, McGuireWoods LLP

David Debold, Gibson Dunn & Crutcher LLP

Harold Furchtgott-Roth, Hudson Institute

Eric Grannon, White & Case LLP

Gregory G. Katsas, Jones Day

Neal Katyal, Hogan Lovells US LLP

Daryl L. Joseffer, King & Spalding LLP

Coleen Klasmeier, Sidley Austin LLP

James F. Neale, McGuireWoods LLP

John E. Osborn, Hogan Lovells US LLP

The Honorable Ajit V. Pai, Federal Communications Commission

Elizabeth P. Papez, Winston & Strawn LLP

Ashley C. Parrish, King & Spalding LLP

Andrew J. Pincus, Mayer Brown LLP

Melissa Arbus Sherry, Latham & Watkins LLP

Brett A. Shumate, Wiley Rein LLP

Thomas E. Spahn, McGuireWoods LLP

The Honorable Jay B. Stephens, Kirkland & Ellis LLP

Jeffrey B. Wall, Sullivan & Cromwell LLP

To be an effective advocate for free-

enterprise principles, WLF must not only

deploy our traditional educational and

advocacy tools, but also communicate

our message in a timely fashion via

social media.

Framing the Issues

WLF’s educational message reaches far beyond Washington, thanks to our webcasting capabilities.

Decision makers and thought leaders around Amer-ica and the world can tune in to our live briefings

and seminars or visit WLF’s website, wlf.org, where each program is conveniently archived. Additional-

ly, each archived program is individually indexed, so viewers can choose to watch particular speakers or

just the question-and-answer session.

32 33

Informing the MediaTargeted and broad-based, our Civic

Communications Program hosts Media Briefings on current legal issues to educate

key decision makers and opinion leaders. As an essential element of our outreach strategy, these

briefings feature leading legal authorities ad-dressing a wide variety of timely topics. Partici-pating speakers donate their time and expertise

to discuss legal reform, clean air regulation, national security, white collar crime, the U.S.

Supreme Court, food and drug regulation, crimi-nalization of free enterprise, and other topics.

35

WLF’s eight publishing formats target specific policy-making audiences. Each format presents single-issue

advocacy on a meaningful legal topic. Our authors are among the nation’s

most well-versed legal professionals, including expert attorneys,

business executives, judges, and senior government officials who

contribute their services on a strictly pro bono basis.

ABA Journal Akron Beacon JournalAmerican Lawyer Media’s Daily Business ReviewAssociated PressThe Barberton HeraldBidness Etc.BioPortfolio Bloomberg BNABloomberg BusinessweekBloomberg Law: BankingBloomberg Law: Product Safety & Liability ReporterBoston GlobeBusiness InsiderCaledonian RecordCanadian PressCato @ LibertyCNBCCopyhypeCorporate CounselCortez JournalThe Daily SignalDefense Environment Alert FCPA ProfessorFinancial TimesFood and Beverage Litigation UpdateFoodNavigatorUSA

ForbesThe Freeman The Guardian (UK)Health Law News and CommentaryThe HillInside Health ReformInside OSHALas Vegas HeraldLas Vegas OpticLaw.comLaw360Legal NewslineLexologyLos Angeles Daily Journal Managing Intellectual PropertyMarin Independent JournalMinnesota LawyerMedical Marketing and MediaMedPage TodayMetropolitan Corporate CounselNational Law JournalNational Law ReviewThe National ReviewNightly Business Report (TV)Overlaywered.comPain News NetworkPhiladelphia Daily NewsPolitico

WLF Was Quoted by a Wide Variety of Media Outlets in 2016, Including:

Rhode Island Lawyers WeeklySan Francisco Daily JournalSanta Fe New MexicanSCOTUSblogSidley Austin LLP Original Source blogStates News ServiceSTAT NewsSNL Insurance DailyTargeted News ServiceTemple Daily Telegram The TennesseanTownhall.comTR DailyWashington Examiner1330 WEBY (radio)Westlaw Environmental JournalWn.com

34

Washington Legal Foundation has an annual budget of over $3 million.

WLF is classified as a national, nonprofit, tax-exempt public foundation under section 501(c)(3) of the Internal Revenue Code.

WLF is an independent corporation and is neither associated nor affiliated with any oth-er organization. WLF does not accept government (taxpayer-financed) grants. We do not employ professional fundraisers.

WLF is fully eligible for matching-gift programs established by many organizations to increase the value of employee contributions. Voluntary charitable gifts constitute all of WLF’s operating revenue. Besides cash contributions, WLF accepts fully tax-deductible donations in the form of:

• Stock Certificates • Life Insurance

• Real Estate • Antiques

• Bonds • Bequests

All contributions to WLF are strictly confidential. WLF does not disclose, publish, or trade the names of its donors.

2016 Support 2016 expenses

Investments

Corporations

Foundations

Individuals

47.7%

33.4%

Educational Materials

Legal Activities

General and Administrative

Fundraising

72.7%

We reach the judiciary.WLF delivers the message.In high-profile legal matters, impact litigation and crisis-management situations, the WLF legal-PR team weighs in with authority. Our seasoned in-house attorneys, along with pro bono support from leading law firms, make us a powerful legal advocate for free enterprise. WLF influences public policy by hosting persuasive briefings for the electronic and print media, authoring national op-ed articles, publishing highly-regarded legal studies in eight different publication formats, and filing briefs in important, precedent-setting cases. The leader in free-enterprise legal advocacy.Leveraging our pragmatic perspective as a public-interest advocate, WLF advances free-enterprise principles with a broad-based communications program that provides timely information and legal opinions from leading experts. Our outreach program disseminates WLF's message to major print and electronic media, judges, Congress, government decision-makers, business leaders, law students, and professors.

From the courtroom to the public-policy arena.WLF has litigated more than 1,393 cases, participated in 841 administrative and regulatory proceedings, and published 2,554 legal studies by 2,208 different legal experts.

wlf.org

L I T I G AT I N G • P U B L I S H I N G • M E D I A C A M PA I G N S

Washington Legal FoundationAdvocate for freedom and justice©

2009 Massachusetts Avenue, NWWashington, DC 20036202 588 0302

36

12.9%

6%

Resources and Support

8.4%

17.2%

1.7%

Washington Legal Foundation Advocate for Freedom and Justice® 2009 Massachusetts Avenue, NW Washington, DC 20036

wlf.org