Atlantic Legal Foundation

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“Atlantic legal provides legal representation and counsel, without fee, to individuals, including scientists, educators, and prominent public servants, corporations, trade associations, and other groups. Some of the principal areas on which we focus are: constitutional issues atlantic legal foundation participates in important cases involving the expansive and capricious exercise of governmental power, as well as the interplay between u.s. Law and international law. Among the issues we have addressed; challenging state and local attempts to regulate interstate and foreign commerce, combating limits on free speech on college campuses, and opposing expansive assertions of u.s. Court jurisdiction over foreign entities and transactions. The foundation concentrates primarily on four areas: advocating the admissibility of sound science in judicial and regulatory proceedings, parental choice in education, good corporate governance and enforcement of the constitutional guarantee of equal protection under law by government actors. Sound science in litigation and regulation atlantic legal is the nation's preeminent public interest law firm advocating for the admissibility of sound medical and expert testimony in toxic tort, product liability and other litigation. Atlantic legal seeks to educate judges about the principles of science applicable to specific cases and fosters the use of sound science principles in judicial and regulatory proceedings. Our amicus briefs on behalf of several nobel laureates and numerous other prominent scientists were cited and relied on by the majority in the landmark daubert trilogy of u. S. Supreme court cases. Over the last two decades atlantic legal has represented almost two dozen nobel laureates and scores of other prominent scientists and scholars in these cases. In 2015, and continuing into 2016, the foundation worked on a number of cases in this area. Of particular note are: issues impacting the market economy atlantic legal advocates for responsible corporate governance and advocates against intrusive regulation of business. The foundation was an early proponent of preservation of the attorney-client privilege against compulsory waiver of that essential protection where corporate misconduct has been asserted. It has challenged abuse of class action procedures and has strongly advocated for the enforcement of arbitration agreements. Educational choice for more than ten years, the foundation has been an energetic supporter of school choice and improvement of public education, most importantly on behalf of charter schools. We continue to welcome opportunities to support these innovative, accountable and generally effective public schools. Atlantic legal's work in this area is focused on supporting charter schools. A major part of this effort is publishing a series of state law guides, written by nationally known labor law attorneys, to educate charter school leaders about what they need to know to deal with efforts by public employee unions to curb or burden charter schools with intrusive union work rules that stifle innovation. The foundation also provides legal counsel to and represents charter schools and charter school advocates in court at no cost. Position papers and conferences atlantic legal also publishes papers on legal issues of public concern. Some examples are: inadequate judicial compensation and its impact on the new york economy; the need for a restructuring of new york's court system; correcting weaknesses in law school curricula; and the need for and benefits of parental choice in k through 12 education. Of note, we have published a series of state-specific guides for charter school leaders leveling the playing field: what charter school leaders can do when a union seeks to represent the teaching staff. The foundation has also sponsored conferences on topics of importance to the business and legal communities, including: science and public policy implications of the health effects of”

“Constitutional and procedural issues jurisdictional determinations under the clean water act u.s. Army corps of engineers v. Hawkes co., inc., u.s. Sup. Ct., no. 15-290 - merits - clean water act - administrative procedure - judicial review. Under the clean water act (cwa), the army corps of engineers may issue a site-specific jurisdictional determination (jd) delineating "waters of the united states" subject to federal regulation of all or a portion of private land. "jd effectively prohibits the land owner from using the regulated portion of his land without a federal permit. Arguably in conflict with the supreme court's decision in sackett v. Epa, 132 s. Ct. 1367 (2012), the ninth and the fifth circuits have refused to review such determinations under the administrative procedure act (apa), holding they create no legal consequences and are not afinal agency action." according to these circuits, a landowner may bring a challenge to such a determination in court only after making a prohibitively costly and time-consuming application for a permit, which the corps will then issue, issue with conditions and limitations, or deny. The application would be unnecessary, and outside the agency's power to issue or deny, if the jd incorrectly asserts federal jurisdiction. The court below, the u.s. Court of appeals for the eighth circuit, held that a "final" jurisdictional determination is judicially reviewable. That decision is in direct conflict with the fifth circuit's decision in kent recycling v. U.s. Army corps of engineers, in which we also filed an amicus brief in support of the petition for certiorari, which was denied. In both hawkes and kent recycling, the army corps of engineers (which shares jurisdiction over cwa enforcement with epa) made a final jurisdictional determination that the subject site is subject to cwa regulation and cannot be developed without a permit. Atlantic legal's amicus brief, filed in december in support of a petition for certiorari before the supreme court, was on behalf of a couple who bought property in weston, connecticut several years ago. Our brief highlights and "puts a human face on" the barriers and frustrations faced by landowners whose property is deemed to include "jurisdictional wetlands" by either the army corps of engineers or the epa. This couple paid slightly over $210,000 for 14 acres of undeveloped land in a suburban community, intending to build a $300,000 house on it. Their experience is consistent with the supreme court's acknowledgment a decade ago that obtaining a permit is onerous; in rapanos v. United states, 547 u.s. 715 (2006), in which atlantic legal also filed an amicus brief, the supreme court noted that the "average applicant for an individual permit spends 788 days and $271,596 in completing the process." our amicus clients spent approximately four years and $200,000 to obtain local building department and conservation commission approvals. Then, when they started repairing a pre-existing gravel driveway leading from the public street to the site of their house, they received a "cease and desist" letter from the army corps of engineers, asserting probable clean water act jurisdiction and threatening fines of $37,500 per day and possible imprisonment if they did not immediately stop work. Four years later, after they exhausted all administrative appeals, the corps of engineers' regional commanding officer affirmed the district engineer's "jurisdictional determination" that the property contains or is connected to "waters of the united states and is therefore subject to federal jurisdiction. There are no more administrative appeals available. The government argued that the jd, by itself, imposes no affirmative legal obligation on the landowner, and that a property owner must apply for a permit, and only if the permit is denied or contains unacceptable conditions can the property owner then seek judicial review. The foundation argues that, as with the compliance order in sa”

“First amendment, compelled speech and labor union agency fees friedrichs v. California teachers association, us supreme court, no. 14-915 - merits. We filed an amicus brief on the merits of this challenge to the mandatory payment of "agency fees" to the california public school teachers union by teachers who have chosen not to join the teachers union. California law requires every teacher working in most of its public schools to financially contribute to the local teachers union and to its state and national affiliates in order to subsidize expenses the union claims are germane to collective bargaining; for teachers who chose not to join the union, these payments are called "agency fees". Agency fees in theory pay for the union's efforts, through collective bargaining, to improve teachers' wages and fringe benefits, and prevent non-union members from free riding;" that is benefitting from the union's collective bargaining efforts without paying union dues. Petitioners are public school teachers who have resigned their union membership and object to paying the agency fee. They claim that requiring them to make any financial contributions in support of any union and affirmatively opt out" of contributing to the non chargeable union expenditures violates their free speech and association rights under the first and fourteenth amendments. In abood v. Detroit bd. Of educ., 431 u.s. 209 (1977), the supreme court upheld a scheme compelling employees to pay agency fees and rejected the idea that unions could use the funds from non union members for political or ideological causes only if the non union members affirmatively consented to pay. In and after abood, the supreme court recognized in a number of cases that payment of compulsory union dues or agency fees implicates a core first amendment right not to be compelled to support others' speech, and increased the procedural safeguards for objecting teachers, while reiterating the unions and the public's interest in preventing free riding." the supreme court called abood into question in harris v. Quinn, 134 s. Ct. 2618 (2014). The court noted that abood relied on two previous cases, railway employees' v. Hanson, 351 u.s. 225 (1956) and machinists v. Street, 367 u.s. 740 (1961), both of which arose in the context of private sector unions rather than public sector unions. The court in harris noted that "whether a public employer accedes to a union's demands [. . .] will depend upon a blend of political ingredients, thereby giving public employees more influence in the decision making process than is possessed by employees similarly organized in the private sector. But despite these acknowledged differences between private- and public-sector bargaining, the court [in abood] treated hanson and street as essentially controlling. The opt-out system has been presumed constitutional since machinists v. Street, in which the court opined, "dissent is not to be presumed; it must affirmatively be made known to the union by the dissenting employee," 367 u.s. At 754. The court, in knox v. Serv. Employees int'l union, local 1000, 132 s. Ct. 2277 (2012), however, expressed concern that this dicta has been used to justify a possible infringement of constitutional rights without proper analysis. Even if the agency fee itself is found to satisfy strict scrutiny, the opt-out system is not the least restrictive means of achieving its goals. The court in knox strongly suggested that an opt-in system where employees are charged the bare minimum service fee and then given the opportunity to opt into paying any amount beyond that would be a better method than the current opt-out system in which employees must submit objections to certain charges annually. We argued that public employee union collective bargaining is increasingly intertwined with politics and the act of bargaining by public employee unions is itself political. Debate about the state public education system is a matter of social and political i”

“Class actions atlantic legal maintained its active interest in trying to limit abusive and massive class action lawsuits and mere certification of a class can create "bet the company" situations and coerce settlement of cases with little merit. Such settlements often benefit the class action plaintiffs' lawyers, but not members of the class. We filed amicus briefs in several class certification cases before the supreme court. Dow chemical company v. Industrial polymers, inc., et al. (urethane antitrust litigation) - u.s. Supreme court, no. 14 1091 - petition stage - class certification - proof of actual injury. In the dow chemical co. V. Industrial polymers, inc., no. 14 1091. In dow, the tenth circuit affirmed a treble damages judgment exceeding $1 billion in a nationwide class action on behalf of approximately 2400 industrial purchasers of polyurethane products. The tenth circuit recognized that, because of the nature of the polyurethane market, industrial purchasers could play manufacturers off against each other and that, as a result, even during the alleged conspiracy period, buyers "sometimes avoided price hikes by negotiating with the supplier and asuccessfully avoided damages." that should have resulted in denial of class certification in this case. Nevertheless, the tenth circuit affirmed class certification and judgment on the ground that class wide "impact" could be resolved on the basis of either an "inference" that "price fixing" always causes harm or, alternatively, that a conspiracy to raise the "baseline prices" from which negotiations begin always causes harm. The central flaw in the tenth circuit's analysis was the court's use of "inferences, or presumptions, of class wide injury, to justify certification of a class in an antitrust suit involving allegations of price fixing. Wal mart stores, inc. V. Dukes, 131 s. Ct. 2541 (2011) requires that class plaintiffs demonstrate that class wide injury can be resolved through common evidence in "one stroke." this, too, should have precluded class certification in this case, because there was ample evidence that the alleged price fixing conspiracy did not injure all class members. The supreme court has emphasized recently that only in "extraordinary" instances is antitrust class action warranted. American express co. V. Italian colors restaurant, 133 s. Ct. 2304 and other circuits have held that class wide impact cannot be presumed from the existence of a price fixing conspiracy and plaintiffs must be able to show with common evidence that all class members suffered some injury. The court recognized decades ago (and has reemphasized recently) "certification of a large class may so increase the defendant's potential liability and litigation costs that he may find it economically prudent to settle and abandon a meritorious defense." coopers & lybrand v. Livesay, 437 u.s. 463, 476 (1978). Mullins v. Direct digital - u.s. Supreme court, no. 15-549 - petition stage - class actions - ascertainability. We filed an amicus brief in support of direct digital's petition for certiorari in direct digital, llc v. Mullins; a consumer class action certification case. Direct digital is an online marketer of dietary supplements. The seventh circuit affirmed a class certification over direct digital's objection. The question presented was whether a court can certify a class under federal rule of civil procedure 23(b)(3) awhere the plaintiff fails to make any showing of a reliable and administratively feasible means for ascertaining class membership," the so-called "ascertainability" standard, under rule 23(b). This is an issue that has divided courts and commentators over the past few years, and is important to targets of consumer class actions. To have a proposed class certified under rule 23, a plaintiff must demonstrate that the class is "ascertainable." many courts have required, for purposes of this ascertainability showing, not only that the class be defined by objective criteria,”

“Federal preemption and enforcement of arbitration agreements agreements to arbitrate disputes are an important alternative to time- and resource-intensive litigation. Arbitration clauses are common in many types of agreements and part of the fabric of commerce; ranging from consumer contracts, to employment agreements, to stock brokerage account agreements. Without them, companies would spend far more than they already do on dispute resolution, and the court system would be bogged down with myriad cases. Congress recognized the benefits to commerce of expeditious and comparatively inexpensive alternative dispute resolution in enacting the federal arbitration act. But numerous state courts, seeing arbitration as benefitting business and harming employees and consumers, have sought to circumvent the plain language of the federal arbitration law. Dickey's barbecue restaurants, inc., et al. V. Chorley enterprises, inc., et al. - u.s. Supreme court, no. 15-719 - arbitration - federal preemption. In this case, the fourth circuit held that the federal arbitration act did not preempt a state mandated "maryland clause" in a franchise agreement that negated an agreement's mandatory arbitration provision requiring arbitration of all claims arising under maryland's state franchise law, even though the maryland clause was imposed by maryland regulators as a condition to approval of the franchiser's franchise disclosure document, franchise agreement, and thus the franchiser's ability to do business in maryland. The fourth circuit held that even though maryland franchise regulators impermissibly required inclusion of the "maryland clause" that negated arbitration of franchise law claims, the inclusion of the clause was "voluntary" because "dickey's was not forced to do anything. It had several options. It could have simply declined to do business in maryland. Or . . . It could have filed a declaratory action challenging the maryland commissioner of securities' position before including the maryland clause in its agreements." the fourth circuit's decision creates an expansive exception to preemption that not only affects arbitration clauses and the faa, but empowers state regulators to undermine and circumvent other federal laws that preempt state law requirements; and permits states to use a "back door" to impose otherwise preempted conditions in contracts. We argued that an otherwise preempted state law, rule or regulation that is required by a state regulator to be included in a contract as a condition and prerequisite for doing business in the state, is not "voluntary and is preempted by the federal arbitration act, whose clear legislative purpose was to promote arbitration as a speedy and efficient means of resolving commercial disputes. Directv, inc. V. Imburgia - u.s. Supreme court, no. 14 462 - merits - preemption - state court refusal to enforce arbitration agreement for apublic policy" reasons. Petitioner, a provider of for-pay television programming, and respondent, a consumer, entered into a standard form contract that required arbitration of disputes, unless the "law of [the customer's] state" makes the arbitration clause unenforceable. California state law, prior to u.s. Supreme court's decision in at&t mobility v. Concepcion (2011), had disfavored arbitration. The california court held that the reference in the contract to "law of your state" allowed the court to hold the arbitration clause unenforceable, because california state law would have so held. Atlantic legal foundation filed an amicus brief urging the supreme court to reaffirm the primacy of federal arbitration law over inconsistent state laws that seek to limit the availability of efficient private arbitration. Alf argued that the california appeals court erred in refusing to honor the parties' agreement to individually arbitrate their dispute. The state court transformed an agreement that forbids class arbitration into an agreement that requires class arbitration in”

“Justiciability - "political question" doctrine cooper v. Tokyo electric power company - ninth circuit, no. 15 80110 - "political question doctrine" as applied to naval operations. Atlantic legal filed an amicus brief on behalf of five retired flag-rank u.s. Army and navy officers in cooper v. Tokyo electric power company, now pending in the u.s. District court for the southern district of california. Our amicus clients are all four-star admirals with extensive experience in commanding aircraft carriers, carrier groups, the u.s. Navy pacific fleet, the pacific command, and one was vice chief of naval operations. This case is a putative class action, in which more than 230 service members (seeking to represent a class of 70,000 persons) claim that they were injured by radiation from the fukushima nuclear power plant ("fnpp") during "operation tomodachi," the u.s. Military's emergency effort to provide assistance after the massive march 11, 2011 earthquake and tsunami that killed more than 15,000 people. The fukushima nuclear power plant is owned and operated by tokyo electric power company (tepco). Plaintiffs assert claims against tepco for negligence, nuisance, strict liability (based on failure to warn, design defect, and ultrahazardous activity), intentional infliction of emotional distress, and loss of consortium. Plaintiffs seek unspecified compensatory and punitive damages and a $1 billion medical monitoring fund. The putative defendants, in addition to tepco, are general electric company, ebasco, fujitsu and toshiba, which are alleged to have been involved in the design and construction of the fnpp. Only tepco has been served with process. Tepco moved to dismiss the complaint on numerous grounds, including forum non conveniens. That motion was granted in part and denied in part on june 11, 2015. Tepco was granted permission by the district court to take an interlocutory appeal to the ninth circuit by order filed june 19, 2015. The district court recognized in certifying an appeal under 28 u.s.c.' 1292(b) that its order implicates two important and unsettled questions of law: (1) whether the political question doctrine bars adjudication of claims for injuries resulting from discretionary military decisions that exposed u.s. Service members to tortiously created hazardous conditions; and (2) whether and to what extent the common law "firefighter's rule," which bars certain claims by emergency responders who are injured while responding to an incident, applies to u.s. Service members injured during an overseas humanitarian mission. In its application for interlocutory review, tepco raises two issues: the "political question" doctrine and the "firefighters rule." our amicus brief addresses both issues, but focuses principally on the operational aspects of the operation and how judicial intervention in violation of the "political question" doctrine would be inimical to u.s. Military and diplomatic objectives. A "political question" arises when a court is asked to decide the propriety of discretionary decisions by the president or other executive branch officials, including the military. United states courts will not hear cases that involve so-called "political questions," because such questions are deemed not justiciable. In this case, if the u.s. Navy had been aware of the risks posed by the fukushima reactor and, despite such awareness, decided to position its nuclear aircraft carrier, the u.s.s. Ronald reagan, off the coast of japan near fukushima, then, under u.s. Law, the navy's action may be viewed as a "superseding intervening cause" of plaintiffs' alleged injuries. If so, the causation chain would be broken, thus eliminating any potential liability for other entities, e.g., tepco, g.e. Or toshiba. The court would, at some stage of the proceedings, have to inquire into the navy's decision-making process, including what it knew and when it knew it. Adjudication of plaintiffs' claims would require inquiry into the reasona”

“Admissibility of expert evidence atlantic legal continues its vigorous and effective advocacy on behalf of the application of clear and sound rules for the admissibility of medical and other expert testimony in toxic tort, product liability and other litigation. City of pomona v. Sqm north america - ninth circuit, no. 15-56062 - appeal after trial - admissibility of expert evidence. We have been asked to file an amicus brief on remand and after trial. This case arises from the sale of perchlorate decades ago in california by sqmna. Atlantic legal filed an amicus brief on a prior ninth circuit appeal and then in support of sqmna's petition for certiorari in the u.s. Supreme court at an earlier stage of this case. The district court had excluded, on daubert grounds, the expert testimony of the city's principal expert, but the ninth circuit reversed and remanded, city of pomona v. Sqm north america corp., 750 f.3d 1036 (9th cir. 2014) (pomona i). In pomona i the ninth circuit found that the city's expert's method and opinions were sufficiently reliable to be admissible at trial. The case went to trial, resulting in a unanimous jury verdict for sqmna. After trial plaintiffs are appealing, alleging error in the trial court's refusal to re open discovery and to allow the city's main expert witness to update his expert report. The city of pomona raises four issues on appeal: first, pomona argues the district court abused its discretion by denying pomona's motion "for leave to submit amended expert reports based upon new facts, to supplement discovery responses based upon new facts, to designate a rebuttal expert, and to conduct additional discovery." pomona sought to update its expert's 2011 report with additional information developed during the three years the first appeal was pending. Second, pomona argues the court abused its discretion by allowing the testimony of sqmna's rebuttal hydrology expert, richard laton, on the subject of alternative sources of perchlorate, a key issue in the case; pomona asserts three errors in the court's ruling: (1) the court failed to conduct an adequate daubert analysis of laton's testimony; (2) laton's testimony was improperly characterized as rebuttal testimony when his testimony presented new theories; and (3) laton's testimony was not reliable under daubert and fre 702. Third, pomona argues the district court erred in rejecting the "consumer expectation" test, and allowing only the "risk-benefit test," for proof of pomona's claim for strict products liability, pomona's sole theory of liability against sqmna. Fourth, pomona argues the district court erred in denying pomona's request for leave to add a new expert witness to testify about the feasibility of a safer alternative design of sqmna's fertilizer. An amicus brief submitted by david faigman, dean of the hastings college of law, in support of the city is troubling. Professor faigman's brief is funded by his start-up business jurilytics, which purports to provide for-hire "peer review" of litigation consultants. Professor faigman's interest in the case is admittedly prompted by his desire to "beta test" jurilytics' business model, and he has submitted extra-record evidence with his amicus brief in order to try to prop-up pomona's expert, while also arguing that his extra-record evidence shows that sqmna's expert opinions were not reliable under daubert. Professor faigman's novel intervention has the potential to set dangerous precedent by eroding a district court judge's exercise of discretion under daubert, and by allowing extra-record, after-the-fact evidence to be used to attack the district judge's decision on appeal. Sqmna has moved to strike the extra-record evidence and arguments submitted by professor faigman. Because of the published decision, and the cutting edge scientific and legal issues raised by the case, it continues to attract significant attention. Atlantic legal foundation is advocating for sound science and established ju”

“Education choice davids v. State of new york - n.y. State supreme court, richmond county- challenge to new york public school teachers' seniority and tenure rules - trial court - "first chair" representation. We have been considering a request by the plaintiffs in davids v. State of new york to take over as lead counsel in this high-profile case. The case is a lawsuit by parents of children in the new york city public schools who allege that the new york state and city public school policies and contracts with the teachers unions that incorporate rigid seniority and tenure provisions result in less qualified (or unqualified) teachers being assigned to predominantly minority or low income elementary schools, thus harming the students and depriving them of the "adequate" education guaranteed by the n.y. State constitution. The theory of the case is similar to that in vergara v. California, in which inner-city students and their parents successfully sued the state of california to strike down the laws that "handcuff" schools from doing what is best for students, namely the "permanent employment" for teachers that forces administrators to either grant or deny tenure to teachers after an inadequate evaluation period, before new teachers complete their beginner teacher education programs, and before administrators are able to assess whether a teacher will be effective; the law or contract provisions that force school districts to base layoffs on seniority alone, with no consideration of teachers' performance in the classroom; and the process for dismissing ineffective teachers that involves numerous steps, requires years of proceedings, costs hundreds of thousands of dollars and rarely ever works, resulting in so-called "rubber rooms" to which patently ineffective and sometimes dangerous or harmful teachers are assigned, with full pay and benefits but no teaching duties. The vergara plaintiffs prevailed in the trial court, and that case is now on appeal. The davids case is in the trial court, supreme court of the state of new york, richmond county (staten island). The plaintiffs have been represented by a solo practitioner, and have withstood one motion to dismiss. A renewed motion to dismiss by the state and intervenor teachers unions is now pending in the same court; the primary theory of the renewed motion to dismiss is that changes in state law and union contracts render plaintiffs' claims moot. The motion is fully briefed and orally argued, and is sub judice. A parallel case, wright v. New york, originally brought in new york state supreme court, albany county by other parents, making similar allegations and based on similar legal theories, has been consolidated with davids. Our leadership is carefully evaluating our participation in this case and the resources that would be required to assume "first chair" responsibility for this case.”

“The foundation is governed by a 26 member board of directors, 25 of whom are independent directors. The independent directors serve without compensation. The board ordinarily meets 3 times a year. Between board meetings, the foundation is directed by an executive committee of the board of directors, consisting of 10 directors, 9 of whom are independent directors. The 9 independent members of the executive committee also act as the audit committee, responsible for the oversight of the audit of financial statements and selection of an independent outside accountant/auditor. This process has not changed from the prior year.”