FedSoc Forums

ConAgra Grocery Products Company, NL Industries, Inc., and The Sherwin-Williams Company filed petitions with the United States Supreme Court seeking review of the California Court of Appeal’s decision in The People of California v. ConAgra Grocery Products Company, 17 Cal. App. 5th 51. This lawsuit in California is using a novel legal theory – public nuisance – which is spreading to other industries across the country.
The petitions raise important issues of national significance regarding the decision, which imposed hundreds of millions of dollars in public nuisance liability on three companies based on decades-old truthful advertising of a lawful product without proof that defendants caused any injury, that anyone relied on the advertisements to use lead paint on the interior of their homes, or that the defendants’ lead paint is in any home.
Amicus Curiae briefs filed in support of the Petitioners agree that California’s misuse of public nuisance in this way violates the defendants’ free speech and due process rights and puts at risk every product manufacturer that has ever done business in California.
Featuring:
Michael A Carvin, Partner, Jones Day
Representing The Sherwin-Williams Company
Erin E. Murphy, Partner, Kirkland Ellis
Representing ConAgra Grocery Products

ConAgra Grocery Products Co. v. California
18-84
Issues: (1) Whether imposing massive and retroactive “public nuisance” liability without requiring proof that the defendant’s nearly century-old conduct caused any individual plaintiff any injury violates the due process clause; and (2) whether retroactively imposing massive liability based on a defendant’s nearly century-old promotion of its then-lawful products without requiring proof of reliance thereon or injury therefrom violates the First Amendment.
The Sherwin-Williams Co. v. California
18-86
Issues: (1) Whether, in conflict with decisions of the Supreme Court and the U.S. Court of Appeals for the 3rd Circuit, the First Amendment permits California to impose tort liability for truthfully promoting a lawful product that it finds to be hazardous in some uses; and (2) whether the due process clause allows a state to impose retroactive and grossly disproportionate public nuisance liability to inspect and abate millions of residences based on decades-old promotions without evidence that consumers relied on those promotions or that petitioner’s lead paint is in any residence.
For more information including petitioners’ and amici briefs, visit www.leadlawsuits.com.

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Russian interference in the 2016 election, Facebook and Cambridge Analytica, and claims of political bias in banning users and restricting content have all led to calls for regulation and antitrust enforcement against the preeminent social media platforms. Tech titan executives are making regular trips to Capitol Hill to explain the actions of their companies. Are Facebook, Twitter, and Google in need of greater government oversight? If so, what type of regulation is warranted? Our panel of experts will answer these questions and offer their views on what we can expect next in the tug of war between the politicians and the internet giants.
Featuring:
Neil Chilson, Senior Research Fellow for Technology and Innovation, Charles Koch Institute
Prof. Thomas W. Hazlett, H.H. Macaulay Endowed Professor of Economics, Clemson College of Business
Prof. Jamil N. Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University
Paul Rosenzweig, Principal, Red Branch Law & Consulting PLLC
Megan Stifel, Nonresident Senior Fellow, Cyber Statecraft Initiative, Atlantic Council
Moderator: Matthew R. A. Heiman, Visiting Fellow, National Security Institute, Antonin Scalia Law School, George Mason University
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.

There is broad agreement that international law applies to cyber conflict. There is less agreement as to exactly what that means. What principles of the existing Law of Armed Conflict clearly apply to cyber attacks by nations? What questions remain open and should be determined by the actual practice of nations? Two distinguished law professors will address these and other issues during the Mike Lewis Memorial Teleforum.

Mike Lewis was a naval aviator, and then a renowned law professor, widely admired by other scholars and practitioners, whether or not they agreed with his substantive conclusions. He was a great friend of the Federalist Society, appearing at dozens of lawyer and student chapter events, as well as the 2014 National Convention. He was also a member of the Executive Committee of the Society's International & National Security Law Practice Group. Each year, the Practice Group holds a Teleforum in his honor.


Featuring:
Professor Eric Talbot Jensen, Professor of Law, The J. Reuben Clark Law School, Brigham Young University
Professor Jeremy A. Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Eric J. Kadel, Jr., Partner, Sullivan & Cromwell LLP


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.

Whether called Human Rights, Human Relations, or Civil Rights Commissions, many cities and counties and virtually every state has one. On the local level, the commissioners who comprise these agencies are usually either volunteers or political appointees. These commissioners typically have no legal training or direct attorney oversight; they just have a passion for “inclusivity” and conciliation. In the Masterpiece Cakeshop case, the Supreme Court called out the Colorado Civil Rights Commission members’ unmasked hostility toward the Christian cake artists’ faith. Just the threat of an investigation or an exemplary proceeding is sufficient to coerce targeted persons into compliance. Do these tribunals, by their very nature, create an atmosphere for the type of animus seen in Masterpiece Cakeshop? Is there a countervailing focus on First Amendment guarantees of free expression and freedom of conscience? How are the protections of due process and equal treatment safeguarded? Is Masterpiece Cakeshop just the tip of the iceberg?
Featuring:

Jeremy Tedesco, Senior counsel and Cice President of U.S. Advocacy and Administration for Alliance Defending Freedom

Herbert Grey, Attorney, Solo Practioner

Moderator: Karen Lugo, Founder, Libertas-West Project

On July 20, 2016, Ted Suhl, a former head of a behavioral health company in Arkansas, was convicted by a federal jury on four counts of bribery. The prosecution was initiated and carried out by the United States Department of Justice and Suhl was found guilty of interstate travel in aid of bribery, federal funds bribery, and two counts of honesty services fraud. Suhl was sentenced to 7 years in prison, and immediately appealed the ruling.
In March 2018, the United States Court of Appeals for the 8th Circuit affirmed the lower court’s ruling. The 8th Circuit rejected the argument made in Suhls’ appeal that the government had failed to prove that an actual agreement for money was paid in exchange for official acts. The Court rejected this argument claiming intent is all that is necessary for a bribery conviction.
Suhl is now filing an appeal to the U.S. Supreme Court. The James Madison Center for Free Speech, a nonprofit founded by James Bopp Jr., filed a friend of the court brief asking of the Supreme Court to hear Suhl’s appeal.
James Bopp joins us on this Teleforum to discuss the brief and the Ted Suhl Appeal.
Featuring:
James Bopp, Jr. General Counsel, Founder, James Madison Center for Free Speech
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.

On July 16, the Fifth Circuit Court of Appeals ruled that the Federal Housing Finance Agency (FHFA) which oversees two government services enterprises (GSEs), is unconstitutionally structured because it is excessively insulated from Executive Branch oversight.
The FHFA was created by the Housing and Economic Recovery Act of 2008 (HERA) to oversee Fannie Mae and Freddie Mac. The parties challenging the FHFA’s constitutionality were shareholders of the GSEs who were seeking to invalidate an amendment to a preferred stock agreement between the Treasury and the FHFA as conservator for the GSEs that required the GSEs to pay quarterly dividends to the government equal to the GSEs’ excess net worth after accounting for prescribed capital reserves.
Counsel for the Plaintiffs, David H. Thompson of Cooper & Kirk, discusses the decision and its implications.
Featuring:
David H. Thompson, Managing Partner, Cooper & Kirk 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.

Government regulation is pervasive, complex and expensive to administer. Americans have a vital interest and real need to understand how the current regulatory system can best be improved and made to achieve its laudable objectives for health, safety and environmental protection using means that are both cost-effective and fully consistent with the rule of law. But can we make the regulatory system more effective without strengthening the administrative state and undermining the rule of law? Can regulatory reform be pursued in a manner that is compatible with the rule of law?
This Teleforum brings together two speakers well-versed in regulation and regulatory reform. Professor Lambert and Mr. Davis will describe and discuss their differing approaches to reform, and their differing perspectives on the fundamental assumptions that undergird the current regulatory system.
Featuring:
J. Kennerly Davis, Jr., Senior Attorney, Former Deputy Attorney General for Virginia
Professor Thom Lambert, Wall Chair in Corporate Law and Governance and Professor of Law, University of Missouri School of Law

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.

Recently there has been much discussion over the proper regulation of cryptocurrencies and initial coin offerings (ICOs), as well as litigation asserting that ICOs must be registered with the Securities and Exchange Commission (SEC). Given the broad range of products and significant expansion of these markets, there has been confusion over the proper regulation of these instruments under various regulatory frameworks and by various regulatory bodies. Join us for a Teleforum discussion of these issues featuring Mark Rasmussen, a partner at Jones Day who was appointed to be the first ever receiver in an SEC enforcement action involving an ICO promoter, and Dave Hirsch, an enforcement attorney at the SEC who serves as the Cyber Liaison for the SEC Fort Worth Regional Office and is a member of the SEC DLT Working Group and the Dark Web Working Group.
Featuring:
David Hirsch, Enforcement Attorney, U.S. Securities and Exchange Commission
Mark W. Rasmussen, Partner, Jones Day

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.

The West Virginia Supreme Court of Appeals has been plagued for months with controversy over alleged overspending and other impropriety. Two justices have resigned, and the remaining three face trials in the state Senate after being impeached earlier this week by the House of Delegates. The ongoing controversy has implications for this fall's elections, the future of the court, and separation of powers. Our teleforum discussion will feature Laurie Lin, a columnist and editorial writer for West Virginia's Charleston Gazette-Mail.
Featuring:
Mrs. Laurie Lin, Columnist and Editorial Writer, Charleston Gazette-Mail

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.

Employers are increasingly turning to arbitration to reduce the costs and burdens of employment-related litigation. Proponents of arbitration contend it is often less expensive than litigation, frequently quicker, but just as fair. Moreover, proponents argue that employer programs utilizing various alternative dispute resolution techniques may resolve employment disputes early and entirely avoid the need for litigation or even arbitration proceedings.In the wake of the #MeToo movement, however, employment arbitration has come under sustained attack in some quarters of the popular media. According to some, employment arbitration silences victims of unlawful workplace conduct and deprives employees of the opportunity to vindicate their rights. Even before the #MeToo movement turned its focus on arbitration, several recent academic surveys concluded that employment arbitration systematically disfavors employees compared to litigation. In apparent response to such criticisms, legislation has been proposed at the state and federal level in the last year seeking to restrict the use of employment arbitration. How persuasive are these criticisms and how informative are these studies?
Featuring:
Prof. William H. J. Hubbard, Professor of Law University of Chicago Law School
Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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.