FedSoc Forums

In December 2019, the United States House of Representatives voted to impeach President Donald Trump. This is the third impeachment of a sitting U.S. President after Johnson and Clinton. As a part of their continuing conversation series, we are excited to host John Malcolm and John Yoo to discuss the vote, Trump’s letter, possible Senate trial rules, comparisons to the historic meaning of impeachment, and more.

Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

On December 11, 2019, the Supreme Court issued its decision in Peter v. NantKwest Inc. upholding the American Rule’s presumption against shifting attorney’s fees. Under Section 145 of the Patent Act, applicants “dissat­isfied with the decision of the Patent Trial and Appeal Board” are afforded the opportunity to file a civil action in the United States District Court for the Eastern District of Virginia. The statute specifies that “[a]ll the expenses of the proceedings shall be paid by the applicant.” The question presented in the case is whether such “expenses” includes the salaries of attorney and paralegal employees of the United States Patent and Trademark Of­fice (“USPTO”). The Supreme Court, in a unanimous opinion, affirmed the en banc majority opinion of the United States Court of Appeals for the Federal Circuit and held that it does not include the attorney’s and paralegal fees. The discussion of this decision will focus on the Court’s analysis and its implications.

Featuring:
-- Robert J. Rando, Founder and Lead Counsel, The Rando Law Firm P.C.

In the scheme of the Administrative State’s employment anti-discrimination functions, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) is often overlooked. Yet, the role of the OFCCP is significant and important because that agency administers and enforces multiple equal employment opportunity laws among businesses that employ approximately 25% of Americans. With a $100 million budget and 500 employees, the OFCCP accomplishes its mission by examining the employment practices of federal contractors and subcontractors to determine whether they comply with equal employment opportunity and affirmative action obligations under such legal authorities. This teleforum will survey the role and functions of the OFCCP, the context of its unique statutory authorities, and its public introduction of limiting principles to its enforcement practices.

Featuring:
-- Craig E. Leen, Director, Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor
-- Robert J. Gaglione, Deputy Director, Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor
-- Moderator: Aram A. Gavoor, Professorial Lecturer of Law, The George Washington University Law School

In Thryv, Inc. v. Click-To-Call Technologies, LP (originally Dex Media Inc. v. Click-To-Call Technologies, LP), the Supreme Court will determine whether the decision to institute an inter partes review (“IPR”), which is argued to be time barred under 35 U.S.C. § 315(b) as filed beyond the one-year date the complaint for infringement was served on the petitioner, may be subject to judicial review after a final written decision of the PTAB to determine whether the petition for IPR was time-barred, despite the language of 35 U.S.C. § 314(d) that prohibits appeal of the USPTO Director’s determination whether to institute an IPR.
The case presents issues of statutory interpretation, judicial review and the Administrative Procedure Act (“APA”), and agency action in light of “statutory jurisdiction, authority, or limitations, or short of statutory right.” APA Section 706(2)(C).
The question presented is: Whether 35 U.S.C. § 314(d) permits appeal of the Patent Trial and Appeal Board’s decision to institute an inter partes review upon finding that 35 U.S.C. § 315(b)’s time bar did not apply.
Please join our expert, Rob Rando, in a discussion of the oral argument. Mr. Rando is co-Counsel on an amicus brief filed on behalf of the New York Intellectual Property Law Association (“NYIPLA”) in this case.

Featuring:

Mr. Robert J. Rando, Founder and Lead Counsel, the Rando Law Firm P.C.

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 late October, the People of the State of New York v. ExxonMobil Corp. trial began in the Supreme Court of the State of New York before Justice Barry Ostrager. The lawsuit was brought under New York’s Martin Act, an anti-fraud statute, and alleged that ExxonMobil misled its investors about how the company accounted for climate-change risks. The trial was the culmination of a nearly three year investigation that was initially launched by former New York Attorney General Eric Schneiderman with his successor eventually filing a lawsuit against ExxonMobil in the fall of 2018. Justice Ostrager handed down his decision on December 10, 2019, ruling for Exxon. Andrew M. Grossman, partner at BakerHostetler, joined us to discuss the ruling, next steps in the case and its implications for other ongoing litigation brought by states and municipalities against energy companies.

Featuring:
-- Andrew M. Grossman, Partner, Baker & Hostetler LLP

In 1990, the Supreme Court startled the nation with a decision in Employment Division v. Smith that upended the long-established understanding of the First Amendment’s religious liberty protections. Rather than subjecting all government burdens on religion to strict scrutiny, as had been done in the past, the Court announced that burdens resulting from neutral and generally applicable laws are not barred by the Free Exercise Clause. Religious exercise would be protected only against laws specifically targeting religion. The decision immediately sparked condemnation from civil rights groups across the political spectrum, was rejected by Congress and 32 states, and has been criticized by prominent scholars and at least ten Supreme Court Justices. Recently, Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh suggested that Smith should be “revisited,” noting that it “drastically cut back on the protection provided by the Free Exercise Clause.” George Ricks has spent forty years as a construction worker in Idaho, and in 2014, sought to register as a general contractor so he could run his own business. Ricks, however, has religious objections to using his Social Security number to obtain work, and the State of Idaho—even though it can access his number in other ways—refuses to let him register without providing it himself. After Ricks sued, the Idaho courts applied Smith to deny him relief. Eric Baxter, counsel for Ricks, will discuss the merits and procedural posture of Ricks v. Idaho Contractors Board.
Featuring:
Eric Baxter, Vice President and Senior Counsel, Becket Fund for Religious Liberty

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.

What happens when governments try to exclude religious foster care agencies? Philadelphia put out an urgent call for 300 more foster families, then refused to send children to any foster families who work with Catholic Social Services, accusing the agency of “discrimination under the guise of religious freedom.” Michigan told agencies statewide that they would have to close their doors if they did not place children with same-sex couples. What will happen in the legal challenges to these actions, and will the Supreme Court step in? Becket Senior Counsel Lori Windham will discuss Fulton v. City of Philadelphia and Buck v. Gordon, two cases challenging government exclusion of religious agencies. The Supreme Court is poised to decide soon whether it will hear Fulton this term, and the Sixth Circuit is set to consider Michigan’s actions in Buck.
Featuring:
Lori Windham, Senior Counsel, Becket Fund for Religious Liberty

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.

*** Please note: CLE is no longer available for this teleforum/podcast.***
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The Federalist Society offers a unique opportunity for attorneys in New York, California, Minnesota, and Illinois to fulfill the one-hour “Diversity and Elimination of Bias” CLE requirement in those states.
On September 30 a federal district judge in Massachusetts issued a ruling rejecting discrimination claims in Students for Fair Admissions v. President and Fellows of Harvard College, 2019 U.S. Dist. LEXIS 170309 (D. Mass.), a case that many expect to go to the U.S. Supreme Court and potentially redefine affirmative action law. In the case, Asian-American students allege that Harvard’s racial preferences for other minority groups discriminate against them in violation of Title VI of the 1964 Civil Rights Act. The students introduced evidence that Asian enrollment at Harvard is less than half what it would be if admission was based solely on academic achievement; that Asian applicants receive the lowest scores on an amorphous “personal rating” assigned by admissions officials who have not met them; and that Harvard’s “holistic” admissions system, touted by the Supreme Court as the model for permissible racial preferences, was originally devised to exclude Jews.
The case raises the question of the meaning of “diversity” in an increasingly multi-racial era, and the continued justification for affirmative action in that era when its burden may now fall largely not on the white majority but on another historically marginalized racial minority group.
Dennis Saffran, a New York appellate attorney and Vice President of the Federalist Society Long Island Lawyers Chapter, submitted an amicus brief in the case on behalf of the National Association of Scholars and has written about the case for the Manhattan Institute’s City Journal. He will review the Supreme Court’s major affirmative action precedents since Bakke in 1978 and the arguments in the Harvard litigation in light of these precedents.

**Additional CLE Instructions:


Please check this event page the morning of the event, where there will be a dropbox link to download all CLE Materials including the links for the online Certificate of Attendance, Evaluation Form, and the PDF Written Materials.
Call into the Teleforum number 1-888-752-3232 before 1:55 p.m. ET on Wednesday, December 4th, 2019.
An electronic sign-in link will go live 10 minutes before the call start time. Please make sure to electronically sign in using this link at the beginning of the call, within 10 minutes of the start time of the call.
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In Atlantic Richfield Co. v. Christian, the Supreme Court will determine whether the Comprehensive Environmental Response, Compensation, and Liability Act preempts state common law claims for restoration damages for pollution also addressed by an EPA-directed cleanup plan. In this case, a Montana copper smelter polluted its neighbors’ properties for decades, but has also spent $450 million to remediate this pollution under a plan negotiated with EPA. Believing Montana state law entitles them to more extensive restoration than the EPA plan provides, neighboring property owners sued Atlantic Richfield for trespass and nuisance, seeking restoration damages and other relief. Jonathan Wood and Corbin Barthold join us to discuss the oral argument in this case and its implications for CERCLA and property rights.
Featuring:
Jonathan Wood, Senior Attorney, Pacific Legal Foundation
Corbin K. Barthold, Senior Litigation Counsel, Washington 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.