Category Archives: Preemption

New York courts reject challenges to nursing home patient protection laws

In the wake of studies showing that cost-cutting by nursing homes contributed to high COVID death rates at New York’s nursing homes, the state legislature enacted a law that set minimum staffing levels, required minimum spending levels on resident care, and capped profits. Though enacted in 2021, implementation was delayed for several years, and the […]

Supreme Court to consider scope of preemption under National Bank Act

The Supreme Court on Friday agreed to hear a case called Cantero v. Bank of America, concerning preemption under the National Bank Act. The petition describes the issue this way: “At least thirteen states have enacted laws requiring mortgage lenders to pay a minimum interest rate on funds held in mortgage escrow accounts. Congress has […]

Massachusetts High Court Upholds State Fiduciary Rule

In 2018, the Fifth Circuit vacated the Department of Labor’s 2016 Fiduciary Rule, which required certain broker-dealers and investment advisers providing investment advice subject to ERISA to act in consumers’ best interests, as opposed to their own.  DOL has indicated it will be proposing a new rule. But in the meantime, states have adopted and […]

Split Ninth Circuit Rejects Challenge to Nevada Medical Debt Law

In June 2021, Nevada enacted a law that requires debt collectors to provide written notification to debtors 60 days before taking any action to collect a medical debt.  Debt collectors sought a preliminary injunction against the law, claiming it violated the First Amendment, was unconstitutionally vague, and was preempted by the FCRA and the FDCPA.  […]

Ninth Circuit *Can* Believe It’s Not Butter…It’s a Spray

FDA regulations set out different “serving sizes” that should be used on nutrition labels for different categories of food. In the “Fats and Oils” category, regulations have different sizes for “Butter, margarine, oil, shortening,” “Butter replacement, Powder,” and “Spray types.” Consumers sued the makers of “I Can’t Believe It’s Not Butter! Spray” contending that the […]

Fifth Circuit: FDCA doesn’t preempt mislabeled cupcake claim

In 2018, C.S., a seven-year old with various food allergies, attended a family friend’s birthday party. The friend’s parent had purchased a cupcake at Whole Foods that had been labeled “vegan.” But that cupcake was not actually vegan, C.S.’s parents now allege, and C.S. suffered an allergic reaction, which has now led to “a number […]

Eighth Circuit rejects preemption challenge to city’s flavored tobacco ban

After the City of Edina, Minnesota, banned the sale of flavored tobacco products, R.J. Reynolds and other tobacco industry companies sued, arguing the law is preempted by the federal Tobacco Control Act. In a unanimous per curiam opinion, the Eighth Circuit affirmed the district court’s decision holding that the law is not preempted.  Agreeing with […]

8th Circuit: FECA does not preempt Minnesota consumer protection law

After receiving consumer complaints about its use of pre-checked recurring-donation checkboxes, the Minnesota Attorney General sent subpoenas and a civil investigative demand to WinRed, a so-called “conduit” political action committee (PAC). WinRed sought a preliminary injunction against the investigation in federal district court, arguing that Minnesota’s consumer protection laws were preempted by the Federal Election […]

Dan Solove gives the pending privacy bill a B+ but pans preemption

Here.  Excerpt: One possible compromise: The ADPPA could contain a preemption provision that would sunset after 5 or 10 years unless Congress would amend the law to renew the preemption term for another 5-10 years. This would force Congress to revisit the law in order to renew the preemption for another period.

Paul Bland: The Swamp on Steroids: Trump’s Plan to Repeal Dodd-Frank Will Enable Corruption

Here.  The whole piece is worth reading, but here's an excerpt: Donald Trump’s Presidential campaign was filled with a lot of bold talk about “draining the swamp” and fighting against lobbyists. He attacked Hillary Clinton for her supposed cozy relationship with banks, and talked about how he’d stand up to Wall Street on behalf of the […]