FedSoc Forums

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

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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

This teleforum will discuss the Supreme Court argument in United States ex rel. Hunt v. Cochise Consultancy, Inc., a case about the False Claims Act statute of limitations. In this case, the Court is examining whether a relator can rely on the tolling provision of the statute of limitations, which allows a claim to be filed up to three years after the responsible government official learns of facts material to action, even if the government never intervenes. While the case presents two narrow issues—how long can a relator wait to file suit and who is the “responsible government official” whose knowledge of the facts can trigger the limitations period—the Court’s resolution of the case could touch on several hot-button issues and create ripples that materially change FCA jurisprudence.
Featuring:
Mark B. Sweet, Partner, Wiley Rein LLP
Brandon J. Moss, Associate, Wiley Rein LLP

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.

In Communications Workers v. Beck (1988), the Supreme Court held that the National Labor Relations Act “authorizes the exaction [from nonmember employees] of only those [union] fees and dues necessary to ‘performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.’” But Beck did not flesh out precisely which union expenses were mandatory (“chargeable”) for nonmembers and which were not (“nonchargeable”), and the National Labor Relations Board and the courts have been slow to precisely denominate which union activities may be supported with nonmembers’ compelled fees.
On March 1, 2019, in United Nurses and Allied Professional (Kent Hospital), the NLRB announced that unions may never charge nonmembers for union legislative or political lobbying, even if the subject of the lobbying “may in general relate to terms of employment or may incidentally affect collective bargaining.” According to the NLRB, “lobbying activity is not a representational function simply because the proposed legislation involves a matter that may also be the subject of collective bargaining.” Kent Hospital is an important decision delineating limits for nonmember employees in the private sector who wish to disassociate from the union’s political and social activities.
Do these developments herald a new era of Beck enforcement and employee free choice in the private-sector workplace? Please join us for a discussion of these issues and trends with Glenn Taubman, a long-time attorney with the National Right to Work Legal Defense Foundation, who represents Jeanette Geary, the Charging Party in the Kent Hospital case.
Featuring:
Glenn Taubman, Staff Attorney, National Right to Work Legal Defense and Education Foundation

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.

Once upon a time, businesses would offer their products or services by sending you a fax advertising them. Unfortunately, if you were on the receiving end of these faxes, they tied up your phone lines and used up your paper and ink. Addressing this and other complaints, Congress passed the Telephone Consumer Protection Act (TCPA), creating a private right of action for a variety of problematic behaviors.
After PDR Network, LLC, faxed Carlton & Harris Chiropractic, Inc. an offer of a free Physicians Desk Reference, the Clinic sued under TCPA. PDR countered that its offer of a free book did not constitute a solicitation subject to the TCPA’s civil liability provision. But in 2006, the Federal Communications Commission had determined that even faxes that promote goods or services for free subject the sender to civil liability.
The Fourth Circuit held that PDR’s fax had violated the TCPA, as the FCC interprets it, and that the Hobbs Act prevented PDR from challenging the FCC’s interpretation in court. So can a federal district court review the FCC's interpretation of the TCPA? Or, because of the Hobbs Act, must a federal district court simply accept the FCC's reading the statute? These important questions are now before the Supreme Court and our experts will provide their insights heading into oral argument.
Featuring:
Bernard Bell, Professor of Law and Herbert Hannoch Scholar, Rutgers Law School
James Conde, Associate, Boyden Gray & Associates, PLLC

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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.