As we’ve mentioned earlier than, america Supreme Courtroom, in Puerto Rico v. Franklin-California Tax-Free Belief, 579 U.S. 115 (2016), despatched the presumption towards preemption, in categorical preemption circumstances anyway, into the dustbin of historical past.

[B]ecause the statute incorporates an categorical pre-emption clause, we don’t invoke any presumption towards pre-emption however as a substitute concentrate on the plain wording of the clause, which essentially incorporates one of the best proof of Congress’ pre-emptive intent.

Id. at 125 (citations and citation marks omitted).

Not a lot later, the Third Circuit, in Shuker v. Smith & Nephew, PLC, 885 F.3d 760 (3d Cir. 2018), used a footnote to refused to take the Supreme Courtroom’s ruling at face worth – purporting to carve out an exception for what it known as “the historic police powers of the states”:

We disagree . . . that any presumption towards categorical preemption not exists. . . .  [Puerto Rico v. Franklin] didn’t handle preemption of claims invoking historic state regulation of issues of well being and security, such because the merchandise legal responsibility claims at subject right here.  As that case doesn’t instantly management right here, we depart to the Supreme Courtroom the prerogative of overruling its personal selections and proceed to use the presumption towards preemption [in prescription medical product liability litigation].

885 F.3d at 771 n.9 (citations and citation marks omitted).

Shuker’s footnoted affront to Supreme Courtroom precedent was untenable when written, and has solely turn into extra so.  If the Third Circuit thought it was within the vanguard of an rebellion towards preemption, it was sorely mistaken.  As an alternative Shuker is in a minority of 1.  As of 2023, each different courtroom of appeals to handle the query has acknowledged that Puerto Rico v. Franklin did certainly broadly abolish the presumption towards preemption in categorical preemption circumstances.

Simply this previous yr, 2023, no fewer than seven different circuits have weighed in – all rejecting any residual presumption towards preemption in categorical preemption circumstances.  The First Circuit held, in Medicaid & Medicare Benefit Merchandise Assn., Inc. v. Hernandez, 58 F.4th 5, 11-12 & n.5 (1st Cir. 2023):

[T]he Supreme Courtroom has additionally lately said that the place a “statute incorporates an categorical pre-emption clause, [courts] don’t invoke any presumption towards pre-emption.”  Puerto Rico v. Franklin. . . .   Though appellants provide varied arguments, primarily based on pre-Franklin case legislation, that the presumption ought to apply on this case, the Supreme Courtroom’s broad language in Franklin forecloses us from making use of the presumption towards preemption in decoding the [statute’s] categorical preemption clause.

Id. at 11-12.  Following this citation is a footnote “be a part of[ing] different circuit courts which have utilized Franklin to different statutes” and rejecting Shuker.  Id. at 12 n.5.

Final month, the Second Circuit reached the identical lead to Buono v. Tyco Fireplace Merchandise, LP, ___ F.4th ___, 2023 WL 5437812, at *3 (2nd Cir. Aug. 24, 2023):

As related right here, when a federal legislation incorporates an categorical preemption clause, we concentrate on the plain wording of the clause, which essentially incorporates one of the best proof of Congress’ preemptive intent.  We “don’t invoke any presumption towards pre-emption” when a statute incorporates an express-preemption clause.

Id. at 3 (quoting Puerto Rico v. Franklin).  A number of district courts within the Second Circuit have adopted Franklin in FDCA-based categorical preemption selections.  See Bischoff v. Albertsons Cos., 2023 WL 4187494, at *3 (S.D.N.Y. June 26, 2023); Goldstein v. Walmart, Inc., 637 F. Supp.3d 95, 103 (S.D.N.Y. 2022); Colella v. Atkins Nutritionals, Inc., 348 F. Supp.3d 120, 130 (E.D.N.Y. 2018); Canale v. Colgate-Palmolive Co., 258 F. Supp.3d 312, 319 (S.D.N.Y. 2017); Olmstead v. Bayer Corp., 2017 WL 3498696, at *3 n.2 (N.D.N.Y. Aug. 15, 2017).

The Fifth Circuit likewise held in Younger Conservatives of Texas Basis v. Smatresk, 73 F.4th 304 (fifth Cir. 2023):

A federal statute expressly preempts a state legislation when Congress adopts categorical language defining the existence and scope of preemption.  And when the statute incorporates an categorical preemption clause, the courtroom doesn’t indulge “any presumption towards preemption however as a substitute focus[es] on the plain wording of the clause, which essentially incorporates one of the best proof of Congress’ preemptive intent.”

Id. at 311 (quoting Puerto Rico v. Franklin; different citations and citation marks omitted).  Accord Dialysis Newco, Inc. v. Neighborhood Well being Methods Group Well being Plan, 938 F.3d 246, 258-60 (fifth Cir. 2019) (making use of Franklin to reject any presumption towards preemption in ERISA case).

The Seventh Circuit has additionally adopted a broad utility of Franklin.  Ye v. GlobalTranz Enterprises, Inc., 74 F.4th 453 (seventh Cir. 2023), held:

[R]eliance on the presumption towards preemption . . . stood in direct battle with the Supreme Courtroom’s instruction to “concentrate on the plain wording of the clause” as a substitute of “invok[ing] any presumption towards pre-emption.”  In line with Franklin, we concentrate on the textual content of [the preemption clause], which is “one of the best proof of Congress’ preemptive intent.”

Id. at 465 (quoting Puerto Rico v. Franklin; different citations and citation marks omitted).  Accord Daley v. Smith & Nephew Inc., 321 F. Supp.3d 891, 896-97 (E.D. Wis. 2018) (following Franklin in FDCA case).

The Eighth Circuit concurs.

Decoding an categorical preemption provision, this courtroom “focus[es] on the plain wording of the clause, which essentially incorporates one of the best proof of Congress’ pre-emptive intent.”  For implied preemption, courts apply a presumption towards preemption.

WinRed, Inc. v. Ellison, 59 F.4th 934, 942 (eighth Cir. 2023) (quoting Puerto Rico v. Franklin; different citations and citation marks omitted).  Accord Pharmaceutical Care Administration Assn. v. Wehbi, 18 F.4th 956, 967 (eighth Cir. 2021) (following Franklin and rejecting Lohr-based argument similar to the Shuker footnote); Ferrell v. Air EVAC EMS, Inc., 900 F.3d 602, 606 (eighth Cir. 2018) (following Franklin in Airline Deregulation Act case); Watson v. Air Strategies Corp., 870 F.3d 812, 817 (eighth Cir. 2017) (en banc) (“In figuring out the which means of an categorical pre-emption provision, we apply no presumption towards pre-emption, and we ‘concentrate on the plain wording of the clause, which essentially incorporates one of the best proof of Congress’ pre-emptive intent.’”) (quoting Franklin).

The Ninth Circuit utilized Puerto Rico v. Franklin to reject presumption towards preemption arguments twice in 2023.  In Hollins v. Walmart, Inc., 67 F.4th 1011 (ninth Cir. 2023), an FDCA case, the courtroom held:

[A] state-law misbranding declare that will enable a state to impose necessities completely different from these permitted underneath the FDCA is preempted.  “[W]e don’t invoke any presumption towards pre-emption” the place, as right here, “the statute incorporates an categorical pre-emption clause.”

Id. at 1016 (quoting Puerto Rico v. Franklin; different citations and citation marks omitted).  Equally, California Restaurant Assn. v. Metropolis of Berkeley, 65 F.4th 1045, 1050 (ninth Cir. 2023); held:

As with all categorical preemption case, our focus is on the plain which means of [the statute].  That’s as a result of “the plain wording of the clause . . . essentially incorporates one of the best proof of Congress’ pre-emptive intent.” In discerning its which means, we glance to [the statute’s] textual content, construction, and context.  And we apply this textual evaluation with none presumptive thumb on the size for or towards preemption.

Id. at 1050 (quoting Puerto Rico v. Franklin; different citations and citation marks omitted).  The Ninth Circuit has utilized the Franklin rule quite a few instances in categorical preemption circumstances.  See Nationwide Railroad Passenger Corp. v. Su, 41 F.4th 1147, 1153 n.1 (ninth Cir. 2022); Webb v. Dealer Joe’s Co., 999 F.3d 1196, 1202 (ninth Cir. 2021); Connell v. Lima Corp., 988 F.3d 1089, 1097 (ninth Cir. 2021) (Biomaterials Entry Assurance Act); Atay v. County of Maui, 842 F.3d 688, 699 (ninth Cir. 2016).  Courts within the Ninth Circuit have additionally repeatedly utilized Franklin to find FDCA-based categorical preemption.  Property of Comatov v. Medtronic, Inc., 2023 WL 2922830, at *4 n.2 (C.D. Cal. March 16, 2023); Poozhikala v. Medtronic, Inc., 2022 WL 1076173, at *4 n.3 (C.D. Cal. April 7, 2022); Poozhikala v. Medtronic, Inc., 2022 WL 610276, at *3 n.1 (C.D. Cal. Jan. 31, 2022); Vieira v. Mentor Worldwide, LLC, 392 F. Supp.3d 1117, 1128-29 (C.D. Cal. 2019), aff’d, 845 Fed. Appx. 503 (ninth Cir. 2021); Jacob v. Mentor Worldwide, LLC, 393 F. Supp.3d 912, 922-23 (C.D. Cal. 2019), aff’d, 845 Fed. Appx. 503 (ninth Cir. 2021); Sewell v. Mentor Worldwide, LLC, 2019 WL 4038219, at *7 (C.D. Cal. Aug. 27, 2019), aff’d, 847 Fed. Appx. 380 (ninth Cir. 2021); Billetts v. Mentor Worldwide, LLC, 2019 WL 4038218 at *6 (C.D. Cal. Aug. 27, 2019), aff’d, 847 Fed. Appx. 377 (ninth Cir. 2021).

And final, however definitely not least, the en banc Eleventh Circuit lately utilized Puerto Rico v. Franklin in Carson v. Monsanto Co., 72 F.4th 1261, 1267 (eleventh Cir. 2023) (en banc), holding that Franklin “abrogated” Lohr on the presumption towards preemption:

Categorical preemption turns totally on “the language of the pre-emption statute and the statutory framework surrounding it.”  Medtronic, Inc. v. Lohr, 518 U.S. 470, 486 (1996) (quotation and inside citation marks omitted), abrogated partially on different grounds by Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115 (2016).  The place Congress has enacted an express-preemption provision, we establish the state legislation that it preempts in response to odd ideas of statutory interpretation, and no presumption towards preemption applies.  See Franklin Cal. Tax-Free Tr., 579 U.S. at 125.

Id. at 1267.

A number of different circuit courts adopted Puerto Rico v. Franklin earlier than this yr.  The Fourth Circuit held:

We expect one of the best course is just to comply with as faithfully as we are able to the wording of the categorical preemption provision, with out making use of a presumption in some way.  And in all occasions, we want not enter the good preemption presumption wars right here as a result of the textual content of the preemption provision . . . governs the disposition of this case.

Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751, 762 n.1 (4th Cir. 2018) (citing Franklin).  See Mikos v. Abbott Laboratories, 2021 WL 5416534, at *3 (D. Md. Nov. 18, 2021) (following Franklin in FDCA case); In re Smith & Nephew Birmingham Hip Resurfacing (BHR) & R3 Hip Implant Merchandise Legal responsibility Litigation, 300 F. Supp.3d 732, 742 n.8 (D. Md. 2018) (identical).

The Tenth Circuit has additionally given Puerto Rico v. Franklin broad utility.

[P]laintiffs first urge us to use a presumption towards preemption. . . .  However in newer years [than Lohr], the Supreme Courtroom has declined to use such a presumption in express-preemption circumstances.  See Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 136 S. Ct. 1938, 1946 (2016) (explaining that for categorical preemption clause, courts “don’t invoke any presumption towards pre[]emption however as a substitute concentrate on the plain wording of the clause, which essentially incorporates one of the best proof of Congress’ pre[]emptive intent”). . . .  Accordingly, we don’t invoke any presumption towards preemption and focus as a substitute on the plain language of the [statutory] preemption provision, which essentially incorporates one of the best proof of Congress’ preemptive intent.

Thornton v. Tyson Meals, Inc., 28 F.4th 1016, 1023-24 (tenth Cir. 2022) (quoting Puerto Rico v. Franklin; different citations and citation marks omitted).  Accord Soiled Boyz Sanitation Service, Inc. v. Metropolis of Rawlins, 889 F.3d 1189, 1198 (tenth Cir. 2018) (citing Franklin and declining to use presumption towards preemption in case involving categorical preemption provision); EagleMed LLC v. Cox, 868 F.3d 893, 903-904 (tenth Cir. 2017) (identical).  See Garcia v. Bayer Essure, Inc., 631 F. Supp.3d 1026, 1034 (D.N.M. 2022) (making use of Franklin in FDCA context).

Actually at some point after Puerto Rico v. Franklin was determined by the Supreme Courtroom (June 14 versus June 13, 2016), the District of Columbia Circuit reached the identical lead to Lindeen v. SEC, 825 F.3d 646 (D.C. Cir. 2016), “reject[ing] a “presumption towards preemption” argument primarily based on Lohr in categorical preemption case.  Id. at 656.  For apparent causes, this choice didn’t cite to Franklin. 

So far as we are able to inform, the Sixth Circuit is the one federal courtroom of appeals to not handle the difficulty.  Nonetheless, it did affirm a District Courtroom ruling reached in In re Ford Motor Co. F-150 & Ranger Truck Gasoline Economic system Advertising and marketing & Gross sales Practices Litigation:

The place, as right here, the “statute incorporates an categorical preemption clause,” the Courtroom ought to “not invoke any presumption towards pre-emption however as a substitute concentrate on the plain wording of the clause, which essentially incorporates one of the best proof of Congress’ pre-emptive intent.”

2022 WL 551221, at *8 (E.D. Mich. Feb. 23, 2022) (quoting Puerto Rico v. Franklin), aff’d, 65 F.4th 851 (sixth Cir. 2023).  Nonetheless, the Sixth Circuit’s choice (which we mentioned right here) “beg[a]n and finish[ed] with implied preemption.”  65 F.4th at 860.

Given all the pieces that has occurred over the 5 years – and significantly this yr – the Third Circuit’s Shuker footnote now stands out like a sore thumb.  Nearly common precedent in different circuits has acknowledged that the Supreme Courtroom meant what it held in Puerto Rico v. Franklin.  It’s excessive time for the Third Circuit to revisit Shuker on the erstwhile presumption towards preemption, and we hope some enterprising defendant will make the requisite argument, and search en banc evaluation if needed.