On March 19, 2019, the Supreme Court decided Air & Liquid Systems Corp., et al. v. DeVries, which concerned whether federal maritime law requires a manufacturer of non-asbestos containing parts -- like pumps, turbines and blowers for Navy ships -- to warn Navy sailors when it is likely asbestos will be used with those parts later (in this case as insulation or connected parts). The plaintiffs were two Navy veterans (and their families) who had been exposed to asbestos, developed cancer and died. They sued the manufacturers of the non-asbestos containing products for failing to warn. The district court granted summary judgment in favor of the manufacturer but the Third Circuit vacated and remanded arguing for application of a foreseeability test.
The plaintiffs argued that the manufacturers had a duty to warn because they knew that asbestos would be required to be incorporated with their parts to function properly. The defendants argued that they had no duty to warn because they were not incorporating the asbestos with their product, the Navy was.
The Supreme Court, by a vote of 6-3, in an opinion by Justice Kavanaugh held that “a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize the danger.” The Court noted that they did not agree with the entirety of the Third Circuit’s reasoning but affirmed its judgment directing the district court to reconsider its grant of summary judgment.
Karen Harned will discuss the Supreme Court’s decision and what it could mean for product liability law outside of the maritime context.
Featuring:
Karen R. Harned, Executive Director, NFIB Small Business Legal Center

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

How an agency counts costs and benefits can often determine whether it will regulate at all. EPA’s reconsideration of its co-benefit accounting methodology in the context of its mercury standard could have significant implications for environmental regulation.
Since the Reagan Administration, federal agencies have been required by Executive Order to quantify the costs and benefits of significant regulatory actions, and to avoid regulations that do more harm than good. Some statutes also explicitly or implicitly require an agency to consider the costs of regulation. The Clean Air Act’s “hazardous air pollutants” provision is such a statute. In Michigan v. EPA, the Supreme Court held that the statutory limitation to “appropriate and necessary” regulation required EPA to consider cost. Justice Scalia’s opinion for the Court explained, “One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”
But what counts as a benefit when EPA is regulating air pollution? Just the health effects of reducing the targeted pollutant? Or all the ancillary benefits (known as “co-benefits”) of other pollutants that are reduced along with it? What if those secondary pollutants are already regulated under different provisions of the same act?
The Obama Administration’s Mercury and Air Toxics Standard was estimated to impose $9.6 billion in compliance costs on the energy sector in exchange for $4 to $6 million in mercury-related benefits. But the rule was also estimated to generate $37 to $90 billion in co-benefits from incidental reductions of particulate matter, a pollutant that is regulated under EPA’s National Ambient Air Quality Standards. In a “Revised Supplemental Cost Finding” EPA has recently proposed to re-do its cost-benefit assessment for the mercury standard, excluding the particulate matter co-benefits and rescinding the Obama Administration’s finding that the mercury standard was “appropriate and necessary.”
Professor Dan Farber and Adam Gustafson will discuss different possible approaches to valuing co-benefits in the context of hazardous air pollution and environmental regulation more broadly.
Featuring:
Prof. Dan Farber, Sho Sato Professor of Law and Faculty Director of the Center for Law, Energy, and the Environment, University of California, Berkeley
Adam Gustafson, Partner, Boyden Gray & Associates PLLC

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

In the Nielsen v. Preap decision, released on Wednesday, March 20, Justices Thomas, Gorsuch, Kavanaugh, and Roberts joined Justice Alito in finding that a mandatory detention statute regarding potentially removable immigrants applied to a wider class of persons than previously found in Demore v. Kim (2003). The Constitutional issue surrounds 8 U.S.C. § 1226(c)(1), known as the “mandatory detention provision” of the Immigration and Nationality Act, states that “The Attorney General shall take into custody any alien who—when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.” Immigrants who commit certain crimes, specified in the statute, are not entitled to a bond hearing and once detained can be held in federal custody until their removal proceedings are resolved.
In two Ninth Circuit decisions, Preap v. Johnson and Khoury v. Asher, it was ruled that criminals released but not immediately detained were entitled to a bond hearing. The ruling in Nielsen reverses these holdings, insofar as Justice Alito concluded that so long as the immigrants meet the criteria set forth in 8 U.S.C. § 1226, the period of time between release and detention is irrelevant. (DHS did not take Preap “into custody” until about seven years after Preap was released from criminal custody.) Justice Alito, writing for the majority, stated that it was “better late...than never” with regard to detention, supporting this conclusion with a grammatical analysis. Specifically, because “an adverb cannot modify a noun, the “when released” clause cannot modify ‘alien’”. In other words, nothing in the plain meaning of the text supports the Circuit Court’s decisions to differently apply the statute to those aliens who were not detained immediately on release from prison.
Featuring:
Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on the website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

On the morning of March 27, the Supreme Court will hear oral argument in Kisor v. Wilkie. The Supreme Court granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members have cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years. Many observers believe that the doctrine’s days are numbered.
Importantly, the United States filed a merits brief in Kisor that forcefully criticized Auer/Seminole Rock deference, yet argued that the Court should not overrule Auer and Seminole Rock “in their entirety.” The brief foreshadows what will likely be a memorable oral argument, featuring Paul Hughes of Mayer Brown LLP and Solicitor General Noel Francisco. Hughes represents James Kisor, the Vietnam War veteran who is the petitioner in the case. Kisor is challenging a decision of the Department of Veterans Affairs (VA) that denied Kisor’s request for retroactive disability benefits connected to his wartime service. Francisco will be defending the VA’s decision.
Karen Harned, Andrew Varcoe, and moderator Stephen Vaden will join us on the afternoon of March 27 to discuss that morning’s oral argument in Kisor and its potential implications -- including the implications, if any, for the Chevron deference doctrine that applies to agency interpretations of statutory provisions (set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)). Harned and Varcoe will have attended the oral argument that morning and will be sharing their observations about it.
Featuring:
Karen Harned, Executive Director, NFIB Small Business Legal Center
Andrew Varcoe, Partner, Boyden Gray & Associates
Moderator: Stephen Vaden, General Counsel, United States Department of Agriculture

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

In today's decision on Sturgeon v. Frost, the Supreme Court has held in favor of an Alaskan moose hunter’s right to traverse a river by hovercraft as it passes through a National Park unit, in a remote and largely roadless area of the state. The National Park Service regulations forbid the use of hovercraft within park units, but Mr. Sturgeon successfully argued that the surface of the river is not subject to Park Service regulation under the Alaska National Interest Lands Conservation Act. Tony Francois, Senior Attorney with the Pacific Legal Foundation, will join us to discuss this decision.
Featuring:
Tony Francois, Senior Attorney, Pacific Legal Foundation


Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

On March 20, 2019, the Supreme Court heard Frank v. Gaos, stemming from a class action suit brought against Google for allegedly leaking, in violation of privacy laws, information about their search terms to third parties by including search terms in the referrer header. Essentially, the plaintiffs allege that Google disseminated private information of users in violation of the Stored Communications Act. The district court approved a cy pres, or “near as possible award”, that directs the application of the property (or a portion of the property) to a charitable purpose that reasonably approximates the designated purpose rather than a few cents or dollars to class members.
The petitioners in the case before the Supreme Court, led by Theodore Frank, included all those who believe the district court’s decision to award a cy pres settlement creates an unlawful conflict of interest between attorneys, who were compensated monetarily, and class members, who were not. Secondly, they allege that it is inappropriate that the settlement fund was given to institutions that regularly council in the matter at hand (i.e. privacy cases). The respondents include members from both parties (plaintiffs and defendants) who support the cy pres award.
The Supreme Court decided to vacate and remand to the 9th Circuit with direction to investigate the issue of standing. Justice Thomas was the lone dissenter, claiming that the settlement should be reversed, because “the class members here received no settlement fund, no meaningful injunctive relief, and no other benefit whatsoever in exchange for the settlement of their claims.”
Ted Frank will discuss the Supreme Court’s decision, next steps, and other like cases including another pending cy pres cert petition, Perryman v Romero.
Featuring:
Theodore "Ted" Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute


Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

The advent of fracking and other technological innovations has unleashed a new era of American energy independence, and increased energy production has required increased construction for pipeline and other related energy infrastructure projects. With this construction has come a wave of litigation, as environmental organizations raise objections under the Clean Water Act, the National Environmental Policy Act, the Natural Gas Act, and a variety of other environmental statutes and property owners in the path of proposed pipelines try to avoid the exercise of eminent domain over their land. Please join us for a teleforum that explores the challenges facing energy suppliers and property owners in today’s legal environment along with a look ahead to possible future developments.
Featuring:
Robert McNamara, Senior Attorney, Institute for Justice
Peter Tolsdorf, Vice President of Litigation and Deputy General Counsel, National Association of Manufacturers

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Some argue that the United States Mexico Canada Agreement (USMCA) presents interesting questions about how to resolve trade and investment disputes. The USMCA, which is the new incarnation of the North American Free Trade Agreement (NAFTA), presents crucial constitutional issues concerning the Appointments Clause, the jurisdiction of the federal courts, due process and jury trial rights. For example, do the USMCA’s binational dispute settlement panels bind the United States as a matter of domestic law? Is it permissible that the administrative agency-type panels’ decisions are generally not reviewable by an Article III court? As important as the USMCA might be for trade and investment flow, few are arguing that the interests of American sovereignty be sacrificed. Our speakers will address these issues.
Featuring:
Prof. John S. Baker, Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University
Dr. R. Sohan Dasgupta, University of California, Berkeley

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Ronald D. Rotunda was a highly-respected, widely-published professor of both Legal Ethics and Constitutional Law. He served on the Executive Committee of the Federalist Society Professional Responsibility and Legal Education Practice Group from its creation until his death in March 2018. In his memory, the Practice Group has arranged to arrange a Teleforum at least annually on issues in legal ethics. The first Teleforum, titled "Ron Rotunda at the Intersection of Legal Ethics and Constitutional Law," will be presented by his long-time casebook co-author, Thomas D. Morgan, on Wednesday, March 20, 2019, at 2 pm EDT.

This Teleforum will focus on lawyer advertising, which Professor Rotunda addressed early in his career, and lawyer rhetoric, whose attempted regulation Professor Rotunda condemned at the end of his career. Professor Morgan will also address Professor Rotunda's interest in technology and his vision of a legal profession whose regulatory burdens may be reduced to allow clients the freedom to pursue their legal rights using services they can better afford.

Featuring:

Prof. Thomas D. Morgan, Oppenheim Professor Emeritus of Antitrust and Trade Regulation L, George Washington University Law School

The California Voting Rights Act (CVRA) imposes liability on cities that elect their representatives through an at-large system and have racially polarized voting. In 2017, the City of Poway was forced to abandon its at-large voting system in favor of a single-member-district system after it was threatened with a lawsuit under the CVRA. In Higginson v. City of Poway, Don Higginson, a Poway voter, sued the City of Poway, claiming that the CVRA is unconstitutional under the Fourteenth Amendment. This case carries significant implications for voting rights in California and elsewhere and is now on appeal at the U.S. Court of Appeals for the Ninth Circuit.

J. Michael Connolly joins us to discuss the case and the potential implications.
Featuring:
J. Michael Connolly, Partner, Consovoy McCarthy Park PLLC