Preemption

Under the Dodd-Frank Act, 12 U. S. C.§ 25b(b)(1)(B), the National Bank Act preempts state law, as applied to a national bank, only if (a) the state law discriminates in favor of state banks and against national banks, or (b) “prevents or significantly interferes with the exercise by the national bank of its powers,” the standard articulated in Barnett Bank… Read More

ERISA did not preempt an ERISA plan's suit against Bayer, the manufacturer of an allegedly defective pregnancy prevention device.  The Plan's claims for negligence, products liability, failure to warn (of defects in the device), etc. did not act immediately and exclusively on ERISA plans.  The ERISA plan was relevant to the claims only insofar as it granted the plan a… Read More

The Federal Food, Drug, and Cosmetic Act preempted plaintiff's claim that defendant's label on "I Can't Believe It's Not Butter! Spray" misleadingly listed 0 calories and 0 grams of fat by using artificially small serving sizes.  The FDA sets serving sizes for labeling purposes by type of food product.  The Butter! Spray was a "spray" not "butter."  And the label… Read More

The federal Children's Online Privacy Protection Act (COPRA; 15 USC 6501-6506) and the FTC's implementing regulations (16 CFR 312.2) forbid collection of children's "persistent identifiers" without parental permission.  Here, plaintiffs alleged solely state law claims against Google for tracking their children's internet usage of YouTube using persistent identifiers without their parents' permission.  COPRA's express preemption provision (15 USC 6502(d)) preempts… Read More

This decision affirms a judgment on demurrer in a UCL suit by a consumer contending that Tootsie Roll committed unlawful and unfair business practices in the period between 2010 and 2016 by including partially hydrogenated oils in its candy bars.  The FDA considered the issue eventually deciding to ban PHOs, but only from 2018 onward in order to give food… Read More

The Federal Motor Carrier Safety Administration's regulation interpreting 49 U.S.C. § 31141(c) is given retroactive effect so that federal law preempts even meal and rest break claims that the trucker plaintiffs filed before the regulation was adopted.  The preemption regulation was intended to and does apply regardless of when the alleged meal and rest break violation occurred. Read More

The federal Food and Drug Act preempts plaintiffs' state law claims based on the drug manufacturers' alleged failure to assure that patients received Medication Guides (which are part of the FDA-approved drug label).  The FDA leaves enforcement of regulations dealing with drug labels in the FDA's hands, barring private suits to enforce FDA regulations.  Under California law, drug manufacturers have… Read More

The FCC's regulation governing the standards for the permissible amount of radio frequency emission from a cellphone (47 C.F.R. § 1.1310(c)) preempt plaintiff's state law claims that Apple's iPhones are unsafe even though they conform to the FCC's standards.  The FCC issued its regulation under the broad authority that Congress conferred on it in the Federal Communications Act of 1934. … Read More

The trial court correctly denied defendants' Anti-SLAPP motion to strike plaintiff's claims under the UCL and CLRA based on defendants' allegedly false statements in releases or other statements and advertisements that Michael Jackson was the lead artist on all tracks in a posthumous CD.  Even if the defendants' statements were protected speech under CCP 425.16(e), plaintiff showed a probability of… Read More

The Federal Motor Carrier Safety Administration's 12/28/2018 order stating that California's meal and rest break statutes were "no longer" enforceable as to interstate truckers of goods preempted state law only prospectively and did not eliminate claims for missed meal and rest breaks that occurred before the order was issued. Read More

The FAA does not preempt California law insofar as it invalidates a waiver of an employee's right to bring PAGA claims arising out of Labor Code violations that affected the plaintiff employee.  However, the FAA does preempt California law (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 and progeny) insofar as it precludes waiver of the employee's… Read More

California may impose a lien on a MediCal recipient's suit against a third party for injuries that were treated with services paid for by MediCal.  The federal Medicare Act and implementing regulations do not preempt state law in this respect.  However, if the recipient settles his claim with the third party defendant, the MediCal lien reaches only the amounts paid… Read More

The Airline Deregulation Act of 1978 (49 USC 41713) preempted plaintiff's tort claims arising from defendant's decision not to use plaintiff's software that offered certain in flight deals to airline passengers.  Refusing to follow the Ninth Circuit's minority view (Charas v. Trans World Airlines, Inc. (9th Cir. 1998) 160 F.3d 1259), this decision holds that in flight deals are part… Read More

This case holds that consumers may recover uncapped attorney fees against holders under the FTC Holder Rule.  Though the attorney fees are part of the "recovery" that the Holder Rule itself caps, the FTC Holder Rule does not preempt any state laws, but merely prescribes a required contract clause.  So, Civil Code 1459.5 is not preempted and it allows full… Read More

A dredge company's application to the Coast Guard for a coastwise shipping permit was protected speech under CCP 425.16.  Plaintiff had no probability of succeeding on its UCL claim based on the allegedly fraudulent application for the coastwise permit because the Coast Guard exercises exclusive jurisdiction over the issuance of those permits, preempting state law claims arising from the issuance… Read More

Employee's claims against his employer for promising a pay raise to all employees if they voted against a union--and then not following through and retaliating against employee when he protested--was preempted by the NLRA as all of the claims alleged conduct that was actually or arguably protected or prohibited under the NLRA. Read More

The trial court made four errors in granting Amazon judgment in this Prop. 65 action against it based on its listing (and sale) of 11 skin whiting products that contained mercury.  First, it improperly found that tests of individual samples of the products didn't prove that all of the product contained mercury.  The test results showed mercury levels so high… Read More

Following Rittmann v. Amazon.com, Inc. (9th Cir. 2020) 971 F.3d 904, this decision holds that drivers who drove goods from in-state warehouses to Domino's franchisees in California are workers engaged in interstate commerce within the meaning of the exception to the FAA's scope.  These drivers handled the last stage of transportation of the goods from out-of-state sources to the California… Read More

The federal Poultry and Poultry Products Inspection Act (21 U.S.C. §§ 451 et seq.) expressly preempts state laws that impose different or additional labeling requirements to the labels approved by the Secretary of Agriculture under the PPIA.  (21 U.S.C. 467e.)  Defendant bears the burden of proving federal preemption and thus, when the issue is contested, must prove that the Secretary… Read More

The FAA applies to an arbitration clause in an employment agreement involved in interstate commerce and preempts California Labor Code 229 which forbids arbitration of wage and hour claims.  The parties did not elect out of FAA preemption by a choice of law clause in the employment contract generally choosing California law, but not specifically choosing California law regarding arbitration… Read More