The issue of federal preemption is hot this year--and not just when it comes to who gets the final say on drug and medical device regulation. On September 2 a federal court judge tossed class action litigation against the cell phone industry over possible health risks associated with radio waves. The judge ruled that the Federal Communications Commission's regulation of wireless radio frequencies preempts any state action.
The case in question, filed in 2001 on behalf of hundreds of thousands of cell phone customers in Pennsylvania, alleged that 19 cell phone manufacturers and providers downplayed the health risks associated with cell phone use. It was one of five putative state court class actions alleging that cell phones posed health risks and that carriers should be required to warn users of potential risk. Those complaints did not seek compensation for any health effects related to cell phone use, but demanded that the companies either supply headsets or pay each customer $100--which, given the customer base, represented potentially hundreds of millions of dollars in liability nationally.
The cell phone companies removed the cases to federal court, arguing that the regulation of radio frequency emissions was a federal issue. They were brought together in a multidistrict litigation under Baltimore federal district court judge Catherine Blake, who subsequently dismissed all the suits. Blake reasoned that Congress had granted the FCC exclusive power to regulate cell phone emissions, preempting state law-based claims.
The U.S. Court of Appeals for the Fourth Circuit reversed Blake's decision on jurisdictional grounds and remanded four of the five suits to state courts. Of those, only one case continued to be pursued by plaintiffs counsel. That action, filed on behalf of Pennsylvania cell phone users, was once again removed from state to federal court. Plaintiffs fared no better before their second federal district court judge: Judge John Padova of Philadelphia echoed Judge Blake's earlier preemption ruling in dismissing the case.
The plaintiffs have said they will appeal.
FOR PLAINTIFF FRANCIS FARINA
JACOBSEN LAW: Kenneth Jacobsen. (He is in Wallingford, Pennsylvania.) Jacobsen led the plaintiffs team.
O'KEEFFE & SHER: Joseph O'Keeffe. (He is in Kutztown, Pennsylvania.)
LAW OFFICES OF PETER G. ANGELOS: Glenn Mintzer and H. Russell Smouse. (They are in Baltimore.) The firm filed some of the initial cases.
DONOVAN SEARLES: Michael Donovan. (He is in Philadelphia.) Donovan got involved in the case when it was sent to federal court in Pennsylvania.
FOR DEFENDANT NOKIA CORPORATION (ESPOO, FINLAND) ET AL.
KIRKLAND & ELLIS: Terrence Dee, Garrett Johnson, Michael Slade, and associates Khara Coleman, Amy Haywood, and Benjamin Hulse. (All are in Chicago.) Kirkland represented Motorola, Inc., but the firm took the lead on the preemption briefs on behalf of all the defendants. Dee argued the preemption motion.
DRINKER BIDDLE & REATH: David Antczak, Seamus Duffy, and counsel Susan Roach. (All are in Philadelphia.) The firm represented AT&T Inc., a longtime firm client. Duffy was part of the defense leadership group, which made decisions on strategy, reviewed pleadings, and helped prepare for oral argument.
WILEY REIN: Andrew McBride and Joshua Turner. (Both are in Washington, D.C.) The firm represented Nokia and Verizon Communications, Inc.; it was also a part of the defendants' leadership group.
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