Monday, April 21, 2014

Pom Wonderful post-argument

I'll be speaking at this AU Washington College of Law event, which will be webcast (follow the link).

  • Brian Boynton, Partner, Wilmer Hale
  • Rebecca Tushnet, Professor, Georgetown Law School
  • Samuel Gedge, Associate, Wiley Rein LLP
Moderated by Prof. Christine Farley, American University Washington College of Law
Slight spoilers: after I read the briefs, I worried that this had become too unholy a mess; the deep dive into the intricacies of FDA regulations seemed counterproductive to Pom's theory of the case.  After the oral argument, it seems at least probable that Pom will prevail on a fairly straightforward theory that the FDA regulations provide a floor and not a ceiling.  No Justice was obviously sympathetic to Coca-Cola, though Pom also faced some tough questions.
I remain puzzled by Coca-Cola's theory that, because there's an explicit preemption provision preempting non-identical state laws, Lanham Act claims must also be precluded.  I was gratified that the Justices who spoke seemed equally puzzled.

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