Pre-Emption Victory


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***** PRESS RELEASE**** Exciting Preemption Victory in Presidential Directive Limits From now on, the regulatory preemption of state common law will be strictly limited. Even regulations issued within the past 10 years will have to be reviewed and in some cases amended. Today, President Obama issued a Directive to the Heads of all Executive Branch Departments and Agencies stating it is the policy of his Administration that “preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.” Preemption of state common law will no longer be presumed or asserted by regulatory agencies absent “explicit preemption by Congress or an otherwise sufficient basis under applicable legal principles.” In order to ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis, the President’s directive provides that: "1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation. 2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption… 3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.” The effect of President Obama’s directive is enormous. For the last 15 years there has been a deliberate movement towards undermining state law negligence and product liability claims by courts all across the United States by taking the position that, if there was a Federal regulation touching or concerning the item, then it was “pre-empted” and, therefore, could not be shown to be otherwise negligent or defective. This is monumental as drug companies, car manufacturers, child seat manufacturers, cigarette companies, medical device manufacturers, seat belt manufacturers and on and on all would rely on “pre-emption” as a defense. This is true even though there was no real in depth analysis done by the federal entities charged with determining whether the products at issue were defective or not. For instance, if the FDA said a drug’s warnings complied with the FDA requirements of that drug, then noone could sue under a state claim alleging inadequate warnings. This represents a large victory as a result of the hard work of the American Association for Justice. -------------------------- Gordon & Elias, LLP, represents clients in all aspects of personal injury and wrongful death. They are a boutique law firm with a nationwide practice focusing on FELA (http://www.gordon-elias.com) claims and Jones Act claims (http://www.offshoreinjuries.com). Gordon & Elias, L.L.P., was formed in 2000. Attorneys Steve Gordon and R. Todd Elias bring over 39 years of combined experience to the representation of their clients. The firm has the experience and resources to pursue recovery from large corporate defendants and/or their insurers. ###