Showing papers in "Fordham Urban Law Journal in 2014"

Democratic Deliberation in the Wild: The McGill Online Design Studio and the RegulationRoom Project

Abstract: 2. Information Overload True deliberation requires information. Democratic deliberative exercises are always structured to include an educational component that prepares participants to discuss the relevant facts and issues, recognize the competing values at stake, and weigh alternatives from multiple perspectives. (78) In the contexts of land use planning and rulemaking, the challenge in moving public participation towards the democratic deliberative ideal is generally not a lack of information per se. Government decision makers typically generate, or pay consultants to generate, a mass of studies, analyses, and assessments during the process of developing a proposal. Unfortunately, even when this material is available to citizens, it is rarely comprehensible to them without help. Often voluminous and filled with technical, legal, or other jargon, such material is virtually always written from the "inside" perspective of the professional consultant, regulator, or planner--with little effort to present context, problems, constraints, and options in terms that make sense to ordinary people. (79) For this reason, efforts to make public participation processes more deliberative must include ways to present the information people need in forms that they are able and willing to consume. a. The McGill Online Design Studio Land use planning gives rise to several challenges relating to information overload. The first is legal. Planning law is elaborate, and is comprised of intricate and often technical statutes and regulations. Even apart from the law, planning is a complex activity that requires an understanding of the distinctive features of the land that is the object of a plan, the interactions of citizens in that space, and the aspirations of those who live in it. To make these information burdens more manageable, the MODS team used a set of strategies that mirror those of RegulationRoom (described below). For instance, the project team prioritizes the most relevant information from the primary planning documents. The statutory provisions that govern a site-specific plan are multiple, lengthy, and complicated. Moreover, a site-specific plan is meant to be responsive to the features of the relevant land and to the priorities of the local community with respect to that land; as such, these materials are also quite extensive. To reduce informational burden on participants, the team focuses attention on the particular features of the Bellechasse site that the community has identified as important, and highlights the regulatory outcomes the site-specific plan aims to achieve. Furthermore, the project website organizes information in a way that enables the user to identify what the site-specific plan has proposed regarding the community's priorities in the Bellechasse site, and to explore (or discover) and comment on what the user finds significant about that element of the site. The website does so by presenting a map that, through a collection of markers, identifies the specific geographic locations on the site that consultations revealed to be areas of interest to the community (Figure 4). Each marker, when clicked, navigates users to a page containing a condensed version of the site plan's proposals for that area, coupled with a variety of pictures, maps, and hyperlink resources that enable the individual users to identify and explore their own preoccupations with the Bellechasse site (Figures 1, 2). [FIGURE 4 OMITTED] The statutory language of planning law and the jargon of planning professionals can appear to the layperson to be impenetrable or inaccessible. The project website responds to this obstacle by translating complex statutes into comprehensible text and maps. Similarly, the website makes the expertise of planners accessible through a combination of clear and simple descriptions and analyses, as well as through design proposals that are presented visually. …

Zombieland/The Detroit Bankruptcy: Why Debts Associated with Pensions, Benefits, and Municipal Securities Never Die. . . And How They are Killing Cities Like Detroit

Abstract: II. KEY LEGAL QUESTIONS: PENSIONER RIGHTS, BONDHOLDER RIGHTS, AND TAXPAYER RIGHTS Against this backdrop of hard choices and competition for meager resources, Detroit's bankruptcy presents two key legal questions: 1) Can Detroit use Chapter 9 bankruptcy proceedings to reduce or restructure accrued pension benefits of retired city workers when the Michigan Constitution states that "[t]he accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby" (207) and also states that "[n]o ... law impairing the obligations of contract shall be enacted?" (208) 2) How will debts associated with Detroit's municipal securities--and particularly its UTGO--be dealt with, when (i) Detroit is already levying taxes at or near statutory maximums; (ii) City residents cannot absorb taxes increases, and (ii) Detroit does not have (and will not have, without restructuring) sufficient funds to pay its debts? In the following subpart, I discuss legal questions surrounding pension impairment in Part A, and issues relating to Detroit's UTGO bonds in Part B. A. Can Detroit Use Chapter 9 Bankruptcy Proceedings to Reduce or Restructure Accrued Pension Rights of Retired City Workers, Given Michigan Constitution Pension Clause? On December 5, 2013, Judge Steven Rhodes held that Detroit is eligible to be a Chapter 9 debtor despite the fact that neither the City nor the State explicitly carved out accrued pension benefits and protected them from adjustment. (209) Judge Rhodes also held that accrued pension benefits are subject to impairment in Chapter 9 proceedings, despite the Pension Clause. (210) In the following section, I discuss the debate surrounding pension impairment and Judge Rhodes's ruling. 1. The Emergency Manager Puts Pension Impairment on the Table. Pension impairment has been a hot button issue in the Detroit bankruptcy ever since June 14, 2013, when the Office of the Emergency Manager published a proposal to the City's creditors which referenced adjusting pension obligations. (211) In his proposal, Orr outlined Detroit's dire financial condition and called for a "thorough overhaul and restructuring" of the City's obligations. (212) Among other initiatives, the June 14 proposal outlined the City's plans to invest $1.25 billion over ten years to improve basic and essential City services such as police, fire and EMS. (213) The June 14 proposal also outlined the City's intention to expand its income and property tax bases, rationalize and adjust income tax rates, and improve tax and fee collection efforts. (214) With respect to creditor recoveries, Orr proposed the following: (i) "treatment of secured debt commensurate with the value of the collateral securing such debt, including the repayment or refinancing of the City's revenue bonds, secured unlimited and limited tax general obligation bonds, secured installment notes and liabilities arising in connection with swap obligations;" (215) (ii) "pro rata distribution of $2,000,000,000 in principal amount of interest-only limited recourse participation notes to holders of unsecured claims," including holders of unsecured limited and unlimited tax general obligation bonds, the service corporations (based on the COPs), the pension systems (based on pension underfunding), and retirees (based on OPEB); (216) and (iii) "[a] 'Dutch Auction' process for the City to purchase the notes." (217) Also at the meeting respecting the June 14 proposal, Orr announced his decision to not make the scheduled $39,700,000 in payments due on the COPs and swap transactions. (218) With respect to claims for unfunded pension liabilities, Orr stated that "[b]ecause the amounts realized on the underfunding claims will be substantially less than the underfunding amount, there must be significant cuts in accrued, vested pension amounts for both active and currently retired persons. …

An Analysis of the Treatment of Employee Pension and Wage Claims in Insolvency and Under Guarantee Schemes in OECD Countries: Comparative Law Lessons for Detroit and the United States

Abstract: 9. FRANCE (343) Pensions This is not a central topic in France, because most pensions and other "social security" benefits are provided by statutory schemes. Therefore, risks related to insolvency are marginal and concern a very limited part of the overall pensions granted. Private occupational pension plans, provided by employers, are not developed in France. There is no equivalent state guarantee for pension benefits as there is for wages as described below. Nevertheless, some occupation pension schemes are offered to the employees, either by the effect of collective agreements or by a unilateral contract by the employer. Except in some exceptional cases, those schemes are externalized, which means that they are managed by private insurers. The legal configuration is usually a triangular one: the pension scheme is set by a collective agreement or a unilateral decision of the employer that commits the employers towards his employees; the contributions and the benefits are managed under a "group insurance contract" signed between the employer and an insurance company. The French statutory law contains some provisions about the duties of the employers and of the insurers to make sure that the benefits will be paid. In case the employer's insolvency in these situations, French courts admit that the benefits which are due to the employees will be paid--to a certain extent--by the AGS (the compulsory system of insurance covering the wages in cases of insolvency described below). But the courts do not require the AGS to cover the contributions that have not been paid to the insurer by the employer in case of insolvency. Unpaid contributions to the statutory schemes have a privileged status in insolvency. By contrast, unpaid contributions to external pension funds are not privileged. Other Employee Benefits As far as how wage claims are treated during insolvency proceedings, both the French Civil Code and Labor Code have applicable provisions. Under the priority (privilege) instituted by the Civil Code, employees can apply it against the employer, even if no bankruptcy proceedings have been started. This priority covers the last six unpaid months (wages, severance pay, and damages for unfair dismissal). The Labor Code institutes a "super-priority" (superprivilege), whereby employees' wages claims are paid before even tax claims. This priority only covers the last sixty days before a bankruptcy case is opened, up to EUR 6172. This scheme under the Labor Code also includes some termination pay (notice period in case of permanent contracts; severance pay in case of fixed term contract). The scheme also covers vacation pay up to a special cap (thirty days' wages). The Assurance Garantie des Salaires (AGS), the French wage guarantee scheme, covers a wide range of wages claims, including termination pay, severance pay, damages for unfair dismissal and other claims that can be related to the contract of employment (for instance some benefits due to the employees under a private plan contracted by the employer), either due to the employees before the bankruptcy proceeding is opened and during the bankruptcy procedure. The AGS insures wage claims up to 74,064 EUR and it is subrogated to the employees' rights in the insolvency proceeding, and it can avail itself of both the Civil Code "privilege" and of the Labor Code "superprivilege." 10. Germany (344) Pensions Pension claims receive no priority or preferences under the German Bankruptcy Code. Germany has adopted a flattened hierarchy of creditors where they are only either secured or unsecured creditors, and there are no exceptions for special groups like employees. The Insolvency Code of 1994 abolished all preferences. A statutory insolvency insurance system administered by a mutual insurance association called the Pension Guarantee Fund (Pensions-Sicherungs-Verein Versicherungsverein aG-PSVaG) (PSVaG) that protects current and future beneficiaries in the event of employer insolvency. …

Judicial Constructions: Modernity, Economic Liberalization, and the Urban Poor in India

Abstract: A. Olga Tellis and the Narrative of History, Circumstances, and a Respect for Pluralistic Contributions to Urban Life The foundational case of modern treatment of slum residents is Olga Tellis, a Supreme Court case from 1985 in which pavement and slum residents in Bombay brought suit against the state and local government for their plans to remove them. (125) They alleged, inter alia, that (1) the government removal of pavement and slum residents violated their right to life (enshrined in Article 21 of the Indian Constitution) by precluding access to their ability to earn livelihood, and (2) this removal would also violate a property claim regarding a right to occupy public land. (126) The government claimed that the residents did not have any rights to trespass public land and prevent free movement of pedestrians on sidewalks. (127) On the first claim, the Supreme Court found in favor of the pavement and slum residents, with certain qualifications. They set certain conditions for the removal of slums sympathetic to slum residents, including that slums which had been in existence for more than twenty years and which had been "improved and developed" would not be removed unless the land on which they stand or the appurtenant land was required for public purposes, in which case, alternate sites or accommodation would be provided. (128) Regarding the second argument, that slum residents had a right to be on public property, the Court did not find for the residents, and stated that "no person has the right to encroach ... on footpaths, pavements or any other person reserved or earmarked for a public purpose." (129) The language is unequivocal and indicated that such a person "becomes a trespasser." (130) While Olga Tellis is groundbreaking, and a high point for those who are forced to live on pavement and in slums, it merits still further exploration, given the trajectories that have followed from it. It is true that the Court's ruling is more accommodating of the rights of pavement and slum residents than what might have been expected. The argument here, however, is that the significance of the decision lies in large part with the way that pavement and slum residents are respected as citizens and individuals (to some extent) and how legitimate uses of space are constructed. Moreover, as explained below, the qualifications (131) to the provision of alternative sites of residence left the law open for later reinterpretation and narrowing. Three narrative threads in the case reflect the Court's recognition of the ways in which these populations were being left out of the benefits of development, while bearing the brunt of shifts in the economy as it moves towards privatized industrialization and service. These narrative themes are: (1) the historical and economic circumstances of their marginalization, (2) their intent to reside where they do, and (3) their contributions to urban life. This respect for their agency and the recognition of the role of the state and market in creating these circumstances and constraints on their ability to live with dignity all but disappear in the later opinions discussed below. 1. History of Displacement An acknowledgement of how slum residents ended up in their living situations permeated the opinion and drove the ruling. Bombay and Delhi (like many other cities) do not have public or low cost housing. Though such housing is provided for in various city plans, there has been no significant implementation of these provisions. (132) The residents who live in slums and on pavements are often displaced rural populations who moved to the cities for better employment opportunities as the primary engines of the economy moved from rural to urban settings. The common sequence of events which led to these slum residents living on the outskirts of legality was recognized in Olga Tellis. [O]ne of the main reasons of the emergence and growth of squatter-settlements in big Metropolitan cities like Bombay, is the availability of job opportunities which are lacking in the rural sector. …

Comparative Local Government Law in Motion: How Different Local Government Law Regimes Affect Global Cities' Bike Share Plans

Abstract: B. The Local Government's Relationship with Other Local Governments Local government law creates a system within which cities operate. That system must regulate the relationship between the local government and the state government located "above" it. The preceding section reviewed the different manners employed by discrete legal systems to structure that relationship. However, that is not the only inter-governmental relationship a local government law system must structure. Once a legal system recognizes local governments--i.e., entities smaller than the overall state system--it is also pressed to regulate the relationships among those smaller entities. Hence in this section, we will review varied patterns that legal systems adopt for structuring such interactions. (117) Different patterns of relationships among local governments may exist, separately or in tandem, depending on the manner in which the legal system fragments local powers. First there is the inevitable fragmentation of space between legally identical local governments, each governing its own separate space. Further fragmentation might be added if the system allows multiple local governments, distinct in their legal status and powers, to cover the same space. If multiple governments are responsible for the same area, they will differ in their geographical scope (one government will cover a larger area encompassing the smaller area covered by the other), in their roles and powers (one government will hold general powers while the other will hold specific powers), or in both. Consequently, different local government law systems will be characterized by three distinct forms of inter-local interactions: between cities, between cities and governments of a broader (yet still sub-state) geographical scope (e.g., regional governments), and between cities and special purpose governments. This section reviews, in order, the varying contours jurisdictions might draw for each of these three types of interactions. By definition, a jurisdiction that allows for local government that is smaller than the jurisdiction itself creates fragmentation. The first, and inevitable, form of fragmentation is the splintering of space between separate yet legally identical local governments--i.e., cities. The resultant relationship between the various cities, particularly neighboring cities, is the focus of much economic, political, and legal discussion among academic commentators, and for good reason. (118) This Article does not pretend to truly engage that discussion. For the Article's purposes, suffice it to state that in a system where the state level enjoys the power to legally define the local--as is true in almost all existing empowerment models reviewed earlier--the state government sets the rules for this relationship between the different locals as it defines all other local powers. That is to say, since the state empowers the city, the state decides which powers to compete or cooperate with other cities the city can exercise. This decision dictates the specific pattern the first of the three forms of inter-local interactions, that between cities, will assume in a given local government law system. Specifically, it determines to what extent will that pattern be characterized by coordination. The architecture of the state-local relationship, especially in systems closer to the weaker pole of local empowerment continuum, institutes an asymmetry between the empowerment to engage in inter-local competition on the one hand, and in inter-local coordination on the other. Any state grant of a specific power to the city inevitably contains the ability, maybe even the necessity, to compete with other cities exercising that same power. In the absence of explicit state-created curbs on such inter-city competition, (119) the power to engage in it is assumed, or, more accurately, built-into the specific local power to act. In contrast, the ability to cooperate and coordinate with other cities is not a component of the award of specific local powers. …

Lessons for New York: Comparative Urban Governance and the Challenge of Climate Change

Abstract: Introduction I. New York City and Weather Disaster: Addressing Climate Change in a Scheme of Vertical Governance II. Engaging Climate Change Through Transnational Urban Networks A. C40 Cities: Developing Metrics and Best Practices Among Large Cities B. Rockefeller Foundation Initiatives: Promoting Multi-Sectoral Collaborations C. Resilient Cities III. Horizontal Urban Governance: Transnational Networks as a Comparative Governance Scheme IV. Addressing Possible Limitations Conclusion INTRODUCTION Climate change and the weather disasters to which it contributes are major challenges for urban governance. The impact of Superstorm Sandy on New York City (the "City"), resulting in loss of life, substantial property damage, evacuation of critical health care facilities, flooded infrastructure, and an extended period of power outage, required an extensive response from the City. (1) Using New York City's experience with Superstorm Sandy as a launching point, this Article addresses the fundamental question of urban governance that weather disasters present. Recognizing the direct and immediate connection local government bears to coastal land, infrastructure, and the people who live and work within its borders, the role of a municipality in preparing for and responding to weather disasters is clear. However, although the effects of extreme weather typically are experienced locally, the conditions that contribute to climate change are global in scope. The enormity and complexity of weather-related disaster preparedness limit the capacity of any individual local government to cope with these phenomena. To consider the governance challenge in the context of weather disasters, Part I of this article contextualizes the question by providing an overview of New York City's principal pre-Superstorm Sandy climate change mitigation measures under the administration of former Mayor Michael Bloomberg. It then examines, in Sandy's aftermath, the City's commitment to a set of initiatives to develop capacity to withstand future weather events. (2) It first considers the City's set of initiatives in relation to the governance structure in the United States that serves as the source of authority, policy guidance, and fiscal support for confronting the challenges of climate change. The structure of governance encompasses multiple levels of government in a hierarchical, vertical relation, operating at successively "higher" territorial and jurisdictional scales in relation to a city. (3) Thus, in the United States, we routinely think of a city's climate-change initiatives within the larger context of federal and state government programs and policies, as well as regional governance schemes wherever they happen to exist, that address the impact of weather-related harms. The balance of this Article explores an alternative approach for addressing climate-change challenges that links urban governments horizontally, across national borders. (4) Specifically, Part II introduces the interurban networks, which are a set of arrangements bearing some family resemblances to other networks, both public and private, in the sense that they are information-driven and embrace collaborative approaches to problem solving. (5) They operate within a normative framework established by international protocols. (6) This Part focuses attention principally on the foundational assumptions grounding three networks of cities: the C40 Cities Climate Leadership Group, an organization of large cities in partnership with the World Bank, the International Council for Local Environmental Initiatives (ICLEI)--Local Governments for Sustainability, and a number of philanthropic organizations; (7) Rockefeller Foundation-initiated resilience networks; (8) and Resilient Cities, an annual global forum initiated in 2010 by ICLEI, the World Mayors Council on Climate Change, and the City of Bonn, Germany. (9) Part III discusses the concomitant possibilities for comparative urban governance of these transnationally connected cities. …

The Detroit Bankruptcy, Pre-Eligibility

Abstract: Introduction I. The First Main Event: Eligibility II. Before the Main Event: Detroit's Bankruptcy, Pre Eligibility A. Dispute Resolution 1. The Automatic Stay and an Additional Injunction 2. Establishing a Retiree Committee 3. Access to Casino Revenues 4. Discovery Generally 5. Pre-Trial Eligibility Matters B. Other Elements 1. Litigation Avoidance 2. Team-Building 3. Keep Things Moving 4. Interactivity 5. Procedural Justice Conclusion INTRODUCTION On July 18, 2013, the City of Detroit, Michigan filed the largest municipal bankruptcy in history. (1) The filing fueled a national conversation about ailing governmental units and the gap between pension promises and financial realities. Eyes were trained primarily on one major court decision: after a trial, the judge would determine whether Detroit met the statutory eligibility requirements for Chapter 9 bankruptcy. If the City jumped that hurdle, then parties would resume negotiations over a plan of adjustment, which would require court review and approval to be effective. Fast-forward several months, and the script already diverged from expectations. As predicted, the City of Detroit has been deemed eligible for bankruptcy. (2) Not as predicted, the court's lengthy eligibility decision tackled, head-on, the issue of pension obligations. The court held that the Michigan Constitution made pension entitlements contractual obligations that could be modified and impaired in a Chapter 9 plan of adjustment. (3) Whether a proposed plan could and would satisfy the legal requirements remained to be seen. As the rest of the world looks ahead, however, this brief commentary looks back. Specifically, it examines Detroit's bankruptcy from its commencement through the eve of the eligibility trial. I draw significantly on a review of primary source documents on the court's docket and digital audio recordings of every court hearing through that time. This analysis sets a foundation to examine the interaction between federal courts, a major metropolitan city in serious financial distress, and its creditors and stakeholders. Part I lays the groundwork by briefly discussing eligibility, the front-end flashpoint in Chapter 9 bankruptcies. Part II examines activity in Detroit's bankruptcy in the pre-eligibility-trial period that history otherwise might omit. Representative and relevant judicial acts of this period are divided into two groups. Part II.A reviews the court's dispute resolution activity. The willingness to rule quickly and either from the bench or quickly thereafter has been essential to the progress of the case. Part II.B identifies other elements to watch in this case beyond traditional dispute resolution. I. THE FIRST MAIN EVENT: ELIGIBILITY The Chapter 9 eligibility requirement for municipalities is not merely a pro forma hurdle. (4) A debtor municipality bears the burden of proof on each element of the Chapter 9 eligibility test by a preponderance of the evidence. (5) This routine expectation of front-end judicial gatekeeping has no analogue in voluntary Chapter 11 cases. (6) Creditors sometimes allege that a Chapter 11 case should be dismissed because the debtor lacks good faith. (7) But judges rarely preside over trials about the entitlement of businesses to file bankruptcy. In a voluntary Chapter 11, the entry of an order for relief occurs simultaneously with the filing of the petition. (8) In a Chapter 9, the court does not enter the order for relief until it makes the eligibility finding. (9) The order for relief rather than the petition date is the trigger for some Bankruptcy Code provisions. (10) The cloud of potential ineligibility can stall negotiations with creditors and make it impossible to complete some transactions." After all, a finding of ineligibility will generate case dismissal--back to the world of state law and races to the courthouse. …

The Contours of the Parallel Claim Exception: The Supreme Court's Opportunity to Define the Ill-Defined

Abstract: 1. Scope of Implied Preemption Not only do lower courts disagree about the scope of express preemption, but they also disagree about the scope of implied preemption. The Supreme Court in Buckman drew a distinction between the case at bar, where plaintiffs claims were impliedly preempted, and Lohp where the plaintiffs claims were not. (242) In Lohr, the plaintiffs' claims survived preemption because they were based on traditional state law theories of negligence. (243) By contrast, in Buckman, the plaintiffs' "fraud claims exist[ed] solely by virtue of the FDCA disclosure requirements." (244) It is clear from Buckman that not all claims avoid implied preemption. (245) What is less clear after Buckman is exactly which claims, other than fraud-on-the-FDA claims, if any, are impliedly preempted. The Sixth and Eighth Circuits have adopted an expansive view of Buckman to impliedly preempt traditional state law tort claims premised on FDA violations. By contrast, the Fifth, Seventh, and Ninth Circuits have limited Buckman's scope to fraud-on-the-FDA claims, thereby allowing traditional state law tort claims premised on FDA violations to avoid implied preemption. In Sprint Fidelis, the Eighth Circuit held that the plaintiffs failure-to-warn claim, alleging that Medtronic did not accurately and timely submit adverse event reports in violation of the MDR, was impliedly preempted. (246) The Court construed Buckman to require that "plaintiff must not be suing because the conduct violates the FDCA." (247) The Court found that the claim that Medtronic did not provide the FDA with sufficient information is "simply an attempt by private parties to enforce the MDA claims foreclosed by [section] 337(a) as construed in Buckman." (248) The Sixth Circuit reached a similar conclusion in Cupek v. Medtronic, Inc., when it impliedly preempted plaintiff's negligence per se claim. (249) In a negligence per se claim, the plaintiff relies on a violation of a statute or regulation to establish duty and breach in negligence. (250) In Cupek, a pre-Riegel case, plaintiffs alleged a negligence per se claim against Medtronic's pacemaker leads based on Medtronic's failure to comply with the FDA's conditions of approval. (251) The Sixth Circuit held that plaintiff's claim was a "disguised fraud on the FDA claim" and therefore was impliedly preempted. (252) Like the Sixth and Eighth Circuits, various district courts have expanded Buckman beyond fraud-on-the FDA to impliedly preempt traditional state law tort claims. In Lewkut v. Stryker Corp., the Southern District of Texas applied Buckman expansively to preempt Lewkut's manufacturing defect claims. (253) Lewkut alleged that Stryker's hip implant system was adulterated in violation of 21 U.S.C. [section] 351(h) of the FDCA. (254) To the extent that Lewkut alleged a parallel claim, the district court held that claim to be impliedly preempted because 21 U.S.C. [section] 337 "explicitly precludes private enforcement of federal laws regarding 'adulterated' devices." (255) Similarly, in Wheeler v. DePuy Spine, Inc., the Southern District of Florida held that plaintiff's negligence claim premised on violations of the FDCA was impliedly preempted. (256) In Wheeler; the plaintiff suffered severe leg and back pain allegedly due to two implanted artificial discs. (257) Plaintiff argued that DePuy violated the MDR by not accurately disclosing the number and extent of disc complications to the FDA. (258) The court held that "[although Plaintiff states that he is not bringing a fraud-on-the-FDA claim, the claim described by Plaintiff appears to be such a claim, and as such it should be addressed to the FDA." (259) As in Sprint Fidelis and Cupek, although the plaintiffs in Lewkut and Wheeler asserted traditional state law causes of action, both courts saw these claims as disguised fraud-on-the-FDA claims. As in Wheeler and DePuy, in McClelland v. Medtronic, Inc. the district court for the Middle District of Florida impliedly preempted the plaintiffs traditional state law tort claim. …