Latest News

Eleventh Circuit Weighs in on Need for Consumer Class Actions’ Plaintiffs to be Ascertainable

WLF Legal Pulse - Mon, 06/29/2015 - 4:26pm
Whether a class of plaintiffs must be “ascertainable”—i.e. capable of being feasibly identified through an objective process—continues to be one of the most contested legal issues in class-action litigation. We’ve written about ascertainability mostly in the context of food labeling lawsuits (our collection is here) but it has arisen in claims involving other consumer products. […]
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Majority Rule: Standing Continues to be Plaintiffs’ Achilles Heel in Data-Breach Class Actions

WLF Legal Pulse - Thu, 06/25/2015 - 4:25pm
Guest Commentary by Spencer Salmon, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law. Some years ago, when data breaches first became a problem for the business community, plaintiffs’ lawyers thought class actions on behalf of consumers whose information had been stolen would be the […]
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Copyright Act Submission Hold: Professional Wrestler’s Publicity and Privacy Claims Preempted

WLF Legal Pulse - Wed, 06/24/2015 - 4:04pm
Guest Commentary by Sara Thornton, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law. What do copyright law, a WWE professional wrestler, and ESPN have in common? They were all involved in an appeal before the U.S. Court of Appeals for the Eighth Circuit […]
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Rokita Statement: Hearing on “Child Nutrition Assistance: Looking at the Cost of Compliance for States and Schools”

Education & the Workforce Committee - Wed, 06/24/2015 - 10:00am
We all know the important role healthy food plays in a child’s education. We cannot expect children to learn or excel in the classroom if they are hungry or are not properly nourished.

That’s why we on the Education and the Workforce Committee have been examining child nutrition programs to ensure they are effectively and efficiently providing children access to nutritious meals. It goes without saying your commitment to serving students is vital to achieving that goal.

The question we want to answer today is: are federal policies giving you the tools and flexibility you need to succeed in implementing child nutrition programs so that your students can succeed in the classroom? Based on what we have heard from other stakeholders, the federal role in these programs may be doing more to hinder your success than help it.

Following the 2010 reauthorization of the national school lunch and breakfast programs, the Department of Agriculture issued a number regulations that expanded Washington’s influence over K-12 cafeterias. The department has narrowly defined what types of food can be served in schools and how often, the maximum number of calories students are allowed to eat per meal, and the price a student must pay per meal.

While these regulations are well intended, states and schools are struggling to comply with them, and the very children we aim to serve are paying the price. While program costs, administrative burdens, and food waste are piling up, portion sizes, food offerings, and the number of students participating in the program are on the decline. In my home state of Indiana, for example, the number of lunches served each year has declined by more than six million since the regulations went into effect in 2012.

I’ve heard these concerns from my colleagues and constituents, and I’ve read the reports from government watchdogs, but – as the saying goes – I needed to see it to believe it. Earlier this year, I joined students and staff for lunch at Cloverdale Middle School in Indiana, where food service director Billy Boyette described the challenges he and his staff face to provide meals that both comply with federal regulations and appeal to students.

From firsthand experience, I can verify that despite the increased federal involvement in the school meals programs, many students are still going to class hungry. Furthermore, reports from the nonpartisan Government Accountability Office raise concerns about whether or not the resources for these programs are going to the students who need it most.

If our shared goal is to increase student success in the classroom, and if we know that nutritious meals play an important role in that success, wasting limited taxpayer dollars hardly seems like a favorable outcome.

That’s why we are here today. As education leaders who have committed themselves to serving students, you provide critical insight into what’s working and what isn’t and what types of policies Congress should consider as we move forward with reauthorization.

It’s time to provide those responsible for implementing child nutrition programs with the flexibility they need to ensure taxpayer dollars are well spent and students are well served. I am confident learning from your experiences, observations, and recommendations will inform our efforts to accomplish just that.

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NAWBO® Installs 2015-2016 Board of Directors

NAWBO Media - Wed, 06/24/2015 - 3:00am
NAWBO National Board Will Continue Efforts to Encourage and Expand Economic Opportunities for Women Entrepreneurs
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Best-Selling Author, Media Personality and Business Owner Bonnie St. John Headlines National Women’s Business Conference Hosted by NAWBO

NAWBO Media - Wed, 06/24/2015 - 3:00am
Hear Bonnie’s Inspirational Story of Becoming the First-Ever African-American to Win Olympic or Paralympic Medals in Ski Racing
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FDA Trans-Fat Order Sets the Table for More Food Product “Regulation by Litigation”

WLF Legal Pulse - Tue, 06/23/2015 - 9:37am
To no one’s surprise, the Food and Drug Administration (FDA) has confirmed its November 8, 2013 initial determination that the agency no longer considers the main source of trans fat in Americans’ diet, partially hydrogenated oils (PHOs), “generally recognized as safe” (GRAS). In its announcement, FDA emphasizes how the three-year window it has granted food […]
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“Handmade” Liquor: Federal Courts Offer Divergent Views in Two Similar Lawsuits

WLF Legal Pulse - Mon, 06/22/2015 - 9:13am
Guest Commentary by Tara Parker, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law. In recent decisions from opposite sides of the nation—Florida and California—two federal district judges issued contradictory decisions on the same question—whether a liquor manufacturer’s use of “handmade” on its product […]
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Appeals Court Confounds Military Justice by Importing Foreign Law into the U.S. Constitution

WLF Legal Pulse - Thu, 06/18/2015 - 4:58pm
Since the war against militant Islamists began in earnest in 2001, a cornerstone of U.S. national security policy has been to employ military commissions to hear criminal charges filed against al Qaeda leaders responsible for the September 11 (and subsequent) attacks. A decision last week by the U.S. Court of Appeals for the D.C. Circuit, […]
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Roe Statement: Hearing on “Restricting Access to Financial Advice: Evaluating the Costs and Consequences for Working Families and Retirees”

Education & the Workforce Committee - Wed, 06/17/2015 - 10:00am
I wish we were here to discuss a proposal that enjoyed broad bipartisan support, one that would help strengthen our economy and improve the lives of hardworking men and women. Unfortunately, that’s not the case. Instead, we are here to address a regulatory scheme that will hurt a lot of families, retirees, and small business owners, and it could not come at a worse possible time.

One of the most difficult challenges we face as a country is a lack of real retirement security for America’s families. The defined benefit pension system continues to experience a decades-long decline, while many workers are still rebuilding the savings they lost in the recent recession. Due to these and other challenges – including a persistently weak economy – too many workers are retiring without the means necessary to ensure their financial security.

Our goal as policymakers should be to advance bold, bipartisan solutions that will help more Americans plan, invest, and save for retirement. Regrettably, the department’s fiduciary regulation would move our country in the opposite direction. It would cut off a vital source of support many low- and middle-income families and small business owners rely on, and that is the help of a trusted financial advisor.

Four years ago, the subcommittee examined a similar proposal that was later withdrawn under intense bipartisan opposition. I said at the time that anyone who provides investment assistance should be well trained, committed to high ethical and professional standards, and devoted to the best interests of those they are serving.

That is why financial advisors have long been subject to a host of securities, tax, and disclosure requirements. It is a complex system of rules and regulations, but it is an important one that has worked well for decades. That does not mean we shouldn’t look for opportunities to improve current standards. But we cannot – in any way – make it harder for workers, retirees, and small business owners to receive the financial advice they may need.

Yet that is precisely what this regulatory proposal would do. Offering some of the most basic assistance would be prohibited, such as advice on rolling over funds from a 401(k) to an IRA. Financial advisors would no longer be able to assist individuals in how to manage their funds upon retirement. And small business owners would be denied help in selecting the right investment options for their workforce, which will lead to fewer employees enrolled in a retirement plan.

It has been suggested on numerous occasions that this proposal will simply apply to financial advisors the same standard recognized in the medical profession. Mr. Secretary, I believe you have drawn that comparison from time to time. It is a clever talking point, but one that couldn’t be more flawed.

As a physician with more than 30 years of experience treating patients, let me just say that the approach reflected in this proposal would destroy what’s left of our health care system. Imagine what would happen if doctors were prohibited from receiving compensation, or were required to sign a contract with each patient before delivering services, or were forced to publish online each and every treatment that had been prescribed the following year. No doctor could run a successful practice under this type of regulatory regime, and no responsible financial advisor will be able to either.

Make no mistake, if this rule goes into effect, a lot of people will quickly learn that their financial adviser – someone they may have known and trusted for years – will no longer be able to take their call. And it is important to note that low- and middle-income families are the ones who will bear the brunt of this misguided proposal. They will lose access to the personal service they rely on and be forced to find suitable advice online or simply fend for themselves.

As is often the case with big government schemes, the wealthiest Americans will do just fine and those we want to help will be hurt the most. Mr. Secretary, this latest fiduciary proposal will lead to the same harmful consequences as the first and should suffer the same fate: Please withdraw this proposal and work with this committee on a responsible, bipartisan approach that will strengthen protections for investors and preserve robust access to financial advice. Our nation’s workers and retirees deserve nothing less.

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Roe Statement: Hearing on H.R. 511, Tribal Labor Sovereignty Act of 2015

Education & the Workforce Committee - Tue, 06/16/2015 - 2:00pm
Upholding Native American rights of self-determination has long been a priority. As far back as the 1830s, when the governmental authority of tribes was first challenged, our courts have held that “tribes possess a nationhood status and retain inherent powers of self-government.” For decades, policymakers have agreed on the importance of protecting these fundamental rights. We should never stand idly by while the sovereignty of Native Americans is threatened, and that is exactly why we’re here today.
A little more than 10 years ago, the National Labor Relations Board overturned long-standing precedent with the landmark San Manuel Bingo & Casino decision and began using a subjective test to determine when and where to exert its jurisdiction over Indian tribes.
This action was met with significant opposition from the Native American community and considered by many to be an attack on tribal sovereignty. In fact, at a hearing of this subcommittee in 2012, Robert Odawi Porter, president of the Seneca Nation of Indians, called the move “unfounded” and a violation of treaty rights. During the same hearing, I myself expressed concern with the board’s policy and its flawed interpretation of the law. Unfortunately, the board has ignored these and similar concerns and continues to exert its authority over Indian tribes.
To make matters worse, the NLRB’s actions have had ramifications that extend beyond threatening tribal sovereignty. The subjective nature of the board’s process for determining jurisdiction has also produced a mess of legal confusion. Years of litigation have produced inconsistent and misguided board decisions, compounding the uncertainty felt by Native American tribes and their businesses.
To help address these concerns and preserve tribal sovereignty over labor policies, our colleague Todd Rokita introduced H.R. 511, the Tribal Labor Sovereignty Act. The bill would prevent the NLRB from asserting its jurisdiction over businesses owned by Native Americans on tribal lands, codifying a board standard that existed long before the San Manuel decision. In doing so, it would protect Native Americans from NLRB interference and provide legal certainty to the nation’s Indian tribes. It’s a commonsense proposal that has attracted bipartisan support.
Today, we will hear from tribal leaders who will share their experiences and discuss the importance of protecting their cherished sovereignty. I look forward to hearing their views on the reforms outlined in the bill.

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Kline Statement: Hearing on "Child Nutrition Assistance: Are Federal Rules and Regulations Serving the Best Interests of Schools and Families?"

Education & the Workforce Committee - Tue, 06/16/2015 - 10:00am
We all know the important role nutrition plays in a child’s development and education. As I’ve said before, it’s just commonsense that if children are hungry or malnourished, then they are less likely to succeed in the classroom. That’s why the federal government has long invested in programs that aim to provide America’s most vulnerable students the nutrition assistance they need.
Ensuring children have access to healthy food is a goal we all share and lies at the heart of our effort to reform federal child nutrition programs, many of which are set to expire later this year. We have conducted several hearings and briefings to learn more about these programs, as well as the rules and regulations that dictate their implementation at the state and local levels.
What we have learned from students, parents, school nutrition professionals, government watchdogs, other key stakeholders, and yes, even the Department of Agriculture, is that the latest reauthorization of federal child nutrition laws is the most far-reaching and costliest in a generation. Current law requires the department to prescribe how much money schools charge for meals, what food can and cannot be served in schools, and how much of it can be served.
In other words, Washington is responsible for deciding what and how much our children eat. These regulations have created an environment where students are not getting the nourishment they need, and food and taxpayer dollars wind up in the trashcan.
Julia Bauscher, president of the School Nutrition Association, conveyed to the committee the concerns she is hearing from school nutrition professionals across the country. Julia described how regulations are resulting in harmful consequences that threaten the ability of schools to best serve students. She went on to decry the “sharp increase in costs and waste and the historic decline in student lunch participation under the new requirements.”
We are often told that more than 90 percent of participating schools are complying with the law. First, as we learned from the Government Accountability Office, it is highly likely this number is overly optimistic. But let’s not forget that schools that choose to participate must comply with the law. The question isn’t how many schools are in in compliance, the question is: At what cost?
The department estimates that participating school districts will be forced to absorb $3.2 billion in additional compliance costs over a five-year period. To make matters worse, fewer students are being served. Since the regulations were put in place, participation in the school meals programs has declined more rapidly than any other period over the last three decades, with 1.4 million fewer children being served each day.

I saw these challenges firsthand during my visit to the Prior Lake School District in Savage, Minnesota. Students described smaller portion sizes and limited options that left students hungry and more likely to buy junk food. After students petitioned the school board, Prior Lake has decided to drop out of the school meals program next school year. It is the only way the school can meet the needs of its students.
And the problems with the law do not stop there. The Office of Inspector General for the Department of Agriculture and the GAO identified examples of programs misusing taxpayer dollars, raising serious concerns about whether or not we are actually assisting those in need.
As we work to reauthorize federal child nutrition programs, we must find solutions that will ensure taxpayer dollars are well spent and children are well served. We know developing a one-size-fits-all approach is not the answer. More mandates and more money aren’t the answer either. Instead, we should look to improve these programs by giving states and school districts the flexibility they need to fulfill the promise of child nutrition assistance.
Duke Storen from the not-for-profit organization Share Our Strength advised at a recent hearing, “It’s critical … to remove bureaucratic barriers and create efficiencies that will allow us to reach those kids who currently go without.” I look forward to discussing how we can achieve just that without imposing more burdens on our schools.

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EPA Shifts its Legally Suspect “Environmental Justice” Agenda into Higher Gear

WLF Legal Pulse - Mon, 06/15/2015 - 11:17am
In one of our first WLF Legal Pulse posts five years ago, we wrote about efforts at the Environmental Protection Agency (EPA) to revitalize “environmental justice” (EJ), which had essentially laid dormant since the Clinton Administration. The EJ movement’s influence has gradually spread, with EPA citing “EJ concerns” among its reasons for opposing the Keystone […]
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Texas Uses Preemption Power to Shut Down Local Fracking Bans, Oklahoma Quickly Follows

WLF Legal Pulse - Mon, 06/15/2015 - 9:00am
Guest Commentary by Sara Thornton, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law. The state legislatures in Texas and Oklahoma recently enacted bills that expressly preempt any local ordinance that prohibits hydraulic fracturing, also called “fracing” or “fracking.” Texas Governor Greg Abbott signed […]
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Sixth Circuit Applies Sanctions Appropriately in Frivolous FCA Case

WLF Legal Pulse - Fri, 06/12/2015 - 3:33pm
Guest Commentary by Spencer Salmon, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law. On May 1, 2015, the U.S. Court of Appeals for the Sixth Circuit affirmed sanctions imposed by a lower court in a suit filed under the False Claims Act (FCA). The […]
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Next Week: Hearings to Examine Child Nutrition, Tribal Sovereignty, and Fiduciary Regulation

Education & the Workforce Committee - Fri, 06/12/2015 - 1:00pm
The House Education and the Workforce Committee will hold a number of hearings during the week of June 15, 2015, to discuss important issues facing classrooms and workplaces. Hearings will take place in room 2175 of the Rayburn House Office Building.
On Tuesday, June 16 at 10:00 a.m., the full committee, chaired by Rep. John Kline (R-MN), will hold a hearing entitled, “Child Nutrition Assistance: Are Federal Rules and Regulations Serving the Best Interests of Schools and Families?” The hearing will provide members an opportunity to examine rules and regulations governing child nutrition policies, as well as discuss possible reforms to improve federal child nutrition programs. Secretary of Agriculture Tom Vilsack is scheduled to testify.
On Tuesday, June 16 at 2:00 p.m., the Subcommittee on Health, Employment, Labor, and Pensions, chaired by Rep. Phil Roe (R-TN), will hold a legislative hearing on H.R. 511, the Tribal Labor Sovereignty Act of 2015. Members will examine legislation introduced by Rep. Todd Rokita (R-IN), which would prevent the National Labor Relations Board from exerting jurisdiction over Native American businesses operated on tribal lands. Witness information will be available here.

On Wednesday, June 17 at 10:00 a.m., the Subcommittee on Health, Employment, Labor, and Pensions will hold a hearing entitled, “Restricting Access to Financial Advice: Evaluating the Costs and Consequences for Working Families and Retirees.” Members and witnesses will examine a proposal by the Department of Labor that would vastly expand the definition of “fiduciary” and how the proposed rule will impact workers, small businesses, and retirees. Secretary of Labor Thomas Perez is scheduled to testify. Information on other witnesses will be available here.
For more information about hearings scheduled for next week, visit

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Witnesses Describe Challenges Caused by Complex, Outdated Wage and Hour Regulatory System

Education & the Workforce Committee - Wed, 06/10/2015 - 5:00pm
The Subcommittee on Workforce Protections, chaired by Rep. Tim Walberg (R-MI), today held a hearing to explore concerns with regulations implementing federal wage and hour standards. Members discussed how the complex, burdensome, and outdated regulatory structure of the Fair Labor Standards Act is impacting workplaces and creating uncertainty for both employees and employers.

“For more than 75 years, the Fair Labor Standards Act has been the foundation of our nation’s wage and hour protections. It establishes important rights for American workers and continues to guide employers in protecting those rights,” Chairman Walberg said. “However, the workplace looks very different today than it did in 1938 when the law was enacted, and the rules and regulations defining the law are failing to meet the needs of a 21st century workforce.”

Employees who are covered by the law’s requirements are referred to as “non-exempt” employees, and those who are not covered are considered “exempt” employees. Most professional, administrative, or managerial employees qualify as exempt as defined in regulations written and enforced by the Department of Labor. Concerns have been raised that the current regulatory structure is extremely complicated and was written before the advent of smartphones and telecommuting.

“The FLSA is a cornerstone among America’s workplace statutes,” stated Nicole Berberich, director of Human Resources at the Cincinnati Animal Referral and Emergency Center. “But the [law] was crafted for a different time, and should be evaluated to ensure it still encourages employers to hire, grow, and better meet the needs of their employees.” Berberich described the difficult process employers face trying to properly classify employees, noting, “An employer acting in good faith can easily mistakenly misclassify employees” and warned that “the stakes in improperly classifying employees are high.”

Leonard Court, an attorney with more than 40 years of experience dealing with wage and hour policies, echoed these concerns, explaining there is “ample opportunity for differing interpretations and misunderstandings of the law’s requirements in the contemporary setting.” Unfortunately, the enforcement policies of the current administration have only made these challenges worse, Court added, by shifting from an approach built on “cooperation and education to one of confrontation and coerced settlement.”

Expressing similar views, Jamie Richardson, vice president at White Castle System, Inc., explained his company’s concerns “in light of a regulatory regime that is increasingly proscriptive” and “seems increasingly disconnected from the needs and desires of the modern worker and contemporary business owners.” He noted, “Today, with many of our urban centers continuing to suffer record high levels of unemployment … regulatory actions go beyond providing protections for those employed and make it harder for employers everywhere to create more jobs.”

Witnesses also discussed a pending Department of Labor proposal that is expected to significantly alter existing overtime regulations. Berberich expressed concern that upcoming changes may “further exacerbate an already complicated set of regulations” and “further limit workplace flexibility.” Richardson agreed, stating, “Rather than providing more opportunities for individuals to earn overtime pay, it appears that the new regulations will only result in a more complicated law … and more litigation.”

Acknowledging concerns related to the department’s pending proposal, Chairman Walberg said, “Thanks to an administration notorious for overreaching and governing through executive fiat, I share many of those same concerns … it is my hope the department will heed these concerns and ultimately put forward a proposal that encourages – rather than stifles – productivity, personal opportunity, and economic growth.”



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