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Johnson & Johnson, et al. v. Lynn Fitch, Attorney General of Mississippi, ex rel. Mississippi
Paid petition · Supreme Court of Mississippi, No. 2019-IA-00033-SCT · judgment April 1, 2021
Before the decision, roughly the 4.1% base rate. The model weighted this up for counsel who has won certiorari before and a circuit split argued in the petition, and down for a state or local-government respondent.
Questions presented
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In Puerto Rico v. Franklin California Tax-Free Trust, this Court held that courts should “not invoke any presumption against pre-emption” when a “statute ‘contains an express pre-emption clause.’” 136 S. Ct. 1938, 1946 (2016). Obeying that command, four circuits and a state supreme court no longer apply any such presumption to express pre-emption clauses. Four state supreme courts (now including the Mississippi Supreme Court) and two circuits, however, continue to apply the presumption to pre-emption provisions that they find ambiguous, or that touch on a state’s historic police powers, or both. Did the Mississippi Supreme Court err in narrowly construing an express preemption clause on the ground that a presumption against pre-emption applies here because it considered the pre-emption provision ambiguous and because the provision touches on historic state police powers?
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The lower courts are divided over what types of agency actions can pre-empt state law. One circuit and the Mississippi Supreme Court hold that only notice-and-comment rulemaking qualifies as pre-emptive. In contrast, seven circuits and a state supreme court reject that line, giving pre-emptive force to final administrative actions that warrant Chevron deference or to any final agency action with the force of law. Did the Mississippi Supreme Court err in holding that only notice-and-comment rulemaking can preempt state law?
Counsel of record
For petitioner
E. Joshua Rosenkranz
Orrick, Herrington & Sutcliffe LLP
For respondent
Scott Grant Stewart
Mississippi Attorney General's Office
Case
Conference history
Distributed for 1 conference
Amicus briefs
7 cert-stage
Proceedings
- Dec 13 2021Petition DENIED. Justice Alito and Justice Kavanaugh took no part in the consideration or decision of this petition.
- Nov 23 2021DISTRIBUTED for Conference of 12/10/2021.
- Nov 19 2021Reply of petitioners Johnson & Johnson, et al. filed. (Distributed)
- Nov 03 2021Brief of respondent Mississippi ex rel. Lynn Fitch, Attorney General of Mississippi in opposition filed.
- Oct 18 2021Notice of bankruptcy filing and stay of proceedings filed by counsel for petitioners.
- Oct 04 2021Brief amicus curiae of Personal Care Products Council filed.
- Oct 04 2021Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
- Oct 04 2021Brief amicus curiae of Product Liability Advisory Council, Inc. filed.
- Oct 04 2021Brief amici curiae of Former FDA Officials filed.
- Oct 04 2021Amicus brief of Product Liability Advisory Council, Inc. not accepted for filing. (Dupilicate submission)(November 08, 2021)
- Oct 01 2021Brief amicus curiae of Pharmaceutical Research and Manufacturers of America filed.
- Sep 30 2021Brief amicus curiae of the Federation of Defense & Corporate Counsel filed.
- Sep 24 2021Brief amici curiae of Atlantic Legal Foundation filed.
- Sep 13 2021Motion to extend the time to file a response is granted and the time is extended to and including November 3, 2021.
- Sep 13 2021Blanket Consent filed by Petitioner, Johnson & Johnson, et al.
- Sep 10 2021Motion to extend the time to file a response from October 4, 2021 to November 3, 2021, submitted to The Clerk.
- Sep 10 2021Blanket Consent filed by Respondent, Mississippi ex rel. Lynn Fitch, Attorney General of Mississippi
- Aug 30 2021Petition for a writ of certiorari filed. (Response due October 4, 2021)