A ruling that is rocking the business world, particularly BigPharma, the U.S. Supreme Court affirmed the Vermont SC's decision in "Wyeth v. Levine." In this closely watched, emotion-laded case which is at the heart of federal pre-emption, the US SC agreed with the VT SC that Federal law "provides a floor, not a ceiling for state regulation."
Many did not anticipate this ruling, even though the US SC had decided in favor of state rights in "Altria v. Good," regarding a light-cigarette case in Maine. Federal pre-emption has been a standard defense for business.
Now it's been so weakened that lawyers representing business will have to embark on the same kind of creative thinking that the plaintiff bar has been known to do. Although not as successful as was hoped, the public nuisance novel legal theory, oriented to bypass traditional product-liability statutes of limitations, was an example of the aggressive imagination of plaintiff attorneys. In a recent TVA case, filed by the North Carolina Attorney General, the plaintiff won by claiming a public nuisance had been created. Here is an e-book on public nuisance Download Publicnuisancevoodoo.
Prediction: The influence and power of state attorneys general, legislators, and governors will continue to surge. Business, both through its lawyers and its lobbyists, will have to become much more clever in presenting its case. This anti-business assault is being fed particularly by the many layoffs and scandals. Individual and class-action employee-rights lawsuits are, well, big business for both the defense and the plaintiff bars.
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