Author Archives: Bernard Bell

Sierra Club v. U. S. Fish & Wildlife Service: The Deliberative Process Privilege in Multi-Agency Deliberations

by Bernard Bell — Wednesday, Jan. 2, 2019

In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme Court held a final biological opinion reviewable because it marked the consummation of the agency process and was an action “from which rights and obligations flow,” even though the opinion was merely delivered to another agency for use in considering its proposed action.   Id. at […]

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Day v. Johns Hopkins: Hard Cases Make Bad Law, or Good Law

by Bernard Bell — Thursday, Dec. 13, 2018

Dr. Paul Wheeler, and his unit within Johns Hopkins Medical Center engaged in a pattern of false medical assessments of claimants seeking benefits under the Federal Black Lung Program.[1]  In Day v. John Hopkins Health System Corp., 907 F.3d 766 (4th Cir. October 26, 2018), a divided Fourth Circuit panel held that the witness litigation […]

A Regulatory Compliance Defense for Data Breach Actions

by Bernard Bell — Thursday, Dec. 6, 2018

Typically, compliance with statute, regulation, or industry custom does not provide a complete defense to tort liability.  The State of Ohio recently adopted legislation, Ohio Substitute Senate Bill 220 (“S.B. 220”)(codified at Ohio Rev. Stat. §§1354.01-.05), to establish a regulatory compliance defense for tort actions seeking recompense for data breaches.  The enrolled legislation and the […]

When Chevron Meets the Hobbs Act: PDR Network v. Carlton & Harris Chiropractic, Inc. (Part III)

by Bernard Bell — Thursday, Nov. 29, 2018

The worse day in a man’s life is when he sits down and begins thinking about how he can get something for nothing.  — Thomas Jefferson This concluding post of my three-part series regarding PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., Dkt. No. 17-1705 (U.S. Sup. Ct.), addresses the merits question the case […]

When Chevron Meets the Hobbs Act: PDR Network v. Carlton & Harris Chiropractic, Inc. (Part II)

by Bernard Bell — Tuesday, Nov. 27, 2018

This is the second post in a three-part series regarding PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., Dkt No. 17-1705 (certiorari granted November 13, 2018).  This post addresses the question the case nominally presents — does the Hobbs Act require district courts to apply FCC regulations, even when the court believes they conflict […]

When Chevron Meets the Hobbs Act: PDR Network v. Carlton & Harris Chiropractic, Inc. (Part I)

by Bernard Bell — Monday, Nov. 26, 2018

  “When Chevron meets Hobbs, consideration of the merits must yield to jurisdictional constraints.” Carlton & Harris Chiropractic, Inc. v. PDR Network, 883 F.3d 459 (4th Cir. 2018) The Supreme Court recently granted certiorari in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., Dkt No. 17-1705, (Order List Nov. 13, 2018).  The Court framed […]

Guido v. Mt. Lemmon School District: The Supreme Court Decides

by Bernard Bell — Wednesday, Nov. 7, 2018

Yesterday, the Court decided Mount Lemon First District v. Guido, Dkt No. 17-587, 2018 WL 5794639 (Nov. 6, 2018), its first merits opinion of the October 2018 term.  The question presented was whether the Age Discrimination in Employment Act of 1967 (ADEA) applied to political subdivisions regardless of whether they employed 20 or more employees.  […]

Too Smart by Half?: Naperville Smart Meter Awareness v. City of Naperville

by Bernard Bell — Tuesday, Nov. 6, 2018

Benjamin Franklin may have discovered electricity, but it was the men who invented the meter who made the money.  Earl Wilson (American journalist 1907-1987) Like the milkmen of an earlier day, meter readers and their monthly meter readings, may become a thing of the past, as utility companies replace analogue energy meters with digital “smart” readers.  […]

Mandating Drug Price Transparency (Part II)

by Bernard Bell — Tuesday, Oct. 30, 2018

Drug prices have captured political leaders’ attention.  See, e.g., Robert Pear, Big Pharma’s Nightmare: Trump Crossing the Aisle to Curb Drug Prices, N.Y.TIMES A23 (Oct. 21, 2018); Robert Langreth, Quicktake: Drug Prices, BLOOMBERG (Jan. 25, 2016)(updated May 11, 2018).  On October 11, 2018, the Centers for Medicare and Medicaid Services (“CMS”) took a modest step […]

Mandating Drug Price Transparency (Part I)

by Bernard Bell — Sunday, Oct. 28, 2018

On October 11, 2018, the Centers for Medicare and Medicaid Services (“CMS”) proposed a requirement that direct-to-consumer (DTC) television advertisements for prescription drugs or biological products (“biologics”) include the product’s “list price.” Regulation to Require Drug Pricing Transparency, 52 Fed. Reg. 52789 (Oct. 18, 2018).  The “Regulation to Require Drug Pricing Transparency,” 42 C.F.R. §§403.1200 to […]