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Category Archives: Public Interest Law

How the snail darter could undermine Obamacare

Author By Finney Law FirmPosted on

At the Volokh Conspiracy, Jonathan Adler draws a parallel between the activist litigation challenge to the Tellico Dam project, Tennessee Valley Authority v. Hill, insisting on a strict reading of the Endangered Species Act, and the activist litigation challenge to Obamacare, King v. Burwell, insisting on a strict reading of the ACA’s provision for state exchanges.

Adler points to the TVA decision to suggest that Court will apply a strict reading to Obamacare and undo the federal exchange that has taken the place of state exchanges in states that have not created their own. Read Adler’s analysis here.

In landmark decision that could clip the wings of regulators, SCOTUS holds that licensing boards may be subject to antitrust suits

Author By Christopher P. FinneyPosted on

In a decision that could have far-reaching implications against over-reach by state licensing Boards, today the United States Supreme Court ruled that under certain circumstances their actions could constitute violations of the Sherman Anti-Trust Act.

The issue in the case of North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13-534, addressed the attempt by the Appellant to punish the provision of teeth whitening services by non-dentists.  

SCOTUS ruled that the facts that (i) the eight-member licensing board consisted of six dentists who were selected by the state’s licensed dentists and (ii) the panel operated largely outside of supervision by the State weighed in favor of denying the panel members the same immunity granted to the State under the Sherman Anti-Trust Act.

Given that licensing panels exist, at least in part, for the purpose of limiting competition in the provision of services offered by various professions, to the extent that they have the forgoing characteristic, both public and private Sherman Anti-Trust actions may lie.

Read about the decision here in the New York Times.

Read the decision here.

Is a fish a “tangible object” for purposes of the Sarbanes Oxley Act?

Author By Christopher P. FinneyPosted on

When the drafters of the Sarbanes Oxley Act made it a crime punishable for up to 20 years in prison to destroy “any record, document or tangible object” in order to obstruct an investigation, did they intend to address the throwing overboard of fish?  

That was the issue of sufficient importance to be decided today by the Supreme Court in Yates v. United States.

(The fish in question were evidence of a crime of catching a fish too short.)

In that action the Defendant/Appellant argued that the statutory prohibition is  “a documents offense” and that its reference to “tangible object[s]” means “computer hard drives, logbooks, [and] things of that nature,” not fish.

In other words, the question was whether the Court could apply a common sense interpretation of the statute rather than a broad dictionary definition of “tangible objects,” because fish certain are “tangible objects” by that term’s ordinary meaning.

In a 5-4 majority a common sense reading of the statute prevailed, and the criminal charges were thrown out.  Fish, it seems, are not “tangible objects.” 

Read the whole article here in the New York Times.

Read the decision here.

Finney Law Firm wins at the U.S. Supreme Court

Author By Christopher P. FinneyPosted on

We will write much more on this decision later, but today Finney Law Firm client prevailed 9-0 at the United States Supreme Court in a decision authored by Justice Clarence Thomas.

The full slip opinion is here.

False political speech case ascends to high court

Author By Christopher P. FinneyPosted on

After the free speech decision in United States v. Alvarez  and the clear perspective of the high court on the standing issue in the Susan B. Anthony List case, it is clear that it is just a matter of time until the U.S. Supreme Court accepts a case on and strikes down a state statute outlawing false political speech.

It is, of course, our hope that that case ends up being the Susan B. Anthony List, a second time.  But, today the United States Supreme Court considered in conference a form of the question in Clayton v. Niska.  There, the issue presented is:

Whether a state statute banning false political speech is narrowly tailored to meet a compelling state interest when such ban covers both implicit and indirect claims of political support.

A decision on whether to accept cert. on that case is expected to be announced next week.

 

Massachusetts False Claims statute challenged

Author By Christopher P. FinneyPosted on

On the heels of Judge Black’s historic decision striking down Ohio’s false claims statute as a violation of the First Amendment, a Plaintiff in Massachusetts is challenging the constitutionality of a similar statute in that state.

There, the statute calls for direct criminal prosecution of those who are claimed to have made a false statement during the course of a political campaign.  In contrast, in Ohio, there first must be a proceeding and finding of violation before the Ohio Elections Commission.  Indeed, the Plaintiff in the Massachusetts action has been charged criminally for a claimed false statement made about a candidate during the course of an election campaign.

The Boston Globe reports that noted Constitutional scholar Lawrence Tribe of Harvard says of the law: “It’s dramatically unconstitutional in its sweep….This is an easy one.”

Read the entire story here.

 

Maple Heights, OH Mayor sued for releasing income tax data of Council member

Author By Christopher P. FinneyPosted on

In one of the more outrageous political acts we have witnessed, in last fall’s election on a Charter Amendment banning Red Light Cameras, officials of the City of Maple Heights (a suburb of Cleveland) obtained and released confidential income tax information of initiative proponent Bill Brownlee, a member of the  City Council.

The information was in a flyer ostensibly designed and distributed to dissuade voters from voting for the ballot initiative, but appeared more aimed at smearing several of the Mayor’s political opponents.

Ohio Revised Code Section 718.13(A) expressly makes all information in municipal tax returns confidential.  This protection is then repeated in the Maple Heights Municipal Code. 

The Mayor, the Law Director, and the Council President also have worked in other ways to target their political opponent and suppress his speech.

Our firm filed suit for Bill Brownlee two weeks ago to recover damages arising from the referenced conduct and discourage its repetition.  A link to the suit is here.

SCOTUS gives prolonged rescission period to homeowners where lender fails to provide Truth-in-Lending disclosures

Author By Christopher P. FinneyPosted on

The U.S. Supreme Court on Tuesday ruled that homeowners had a right to rescind their mortgage loan for up to three years after the loan origination date if the lender failed to provide the requisite “Truth-in-Lending” disclosures.

The decision, Jesinoski v. Countrywide, is here.  A Reuters article on the decision is here.

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