FedSoc Forums

On January 18, the Department of Health and Human Services (HHS) announced the creation of a Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR). The next day, HHS also announced a proposed conscience regulation coming out of OCR. Roger Severino, Director of the Office for Civil Rights at HHS, will join us to discuss the establishment and goals of the new division and information about the proposed conscience regulation.

Featuring:
Roger Severino, Director, Office of Civil Rights (OCR), U.S. Department of Health & Human Services

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In Bristol-Myers Squibb v. Superior Court and BNSF Railway Co. v. Tyrrell, the Supreme Court reiterated and clarified its tests for specific and general personal jurisdiction. In Bristol-Myers Squibb, the Court held that there must be a connection between the defendant’s contacts with the forum state and the plaintiff’s cause of action and that personal jurisdiction is—at the very least—a plaintiff-by-plaintiff analysis. In BNSF, the Supreme Court reiterated that a corporation is subject to general or all-purpose jurisdiction only where it is at home, and that—absent exceptional circumstances—a corporation is only at home where it is incorporated and headquartered. Just as importantly, BNSF emphasized that the at-home test applied to all assertions of general jurisdiction over a company—its announcement of the at-home test in Daimler AG v. Bauman was not limited to its specific facts.
Although Bristol-Myers Squibb and BNSF will likely put an end to the worst forum-shopping abuses by plaintiffs, they leave many questions unanswered. Just how much of a connection between the forum and the claims is necessary for specific jurisdiction? What will a plaintiff-by-plaintiff approach to specific jurisdiction mean for nationwide class actions and aggregated actions? And can a company be subject to general jurisdiction anywhere other than where it is headquartered and incorporated?
Sean Marotta will discuss these and other questions, surveying the personal-jurisdiction landscape after Bristol-Myers Squibb and BNSF.
Featuring:
Sean Marotta, Senior Associate, Hogan Lovells

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Multiple legal challenges to the Army Corps of Engineers and the Environmental Protection Agency’s controversial rule redefining “waters of the United States” (WOTUS) raise important questions. In National Association of Manufacturers v. DOD, the Supreme Court addressed which is the proper venue for challenging a rule like WOTUS – the federal district courts or the federal courts of appeals.

The Supreme Court heard oral argument in this case last October. The issue is important because it is unclear where and when regulated parties can challenge certain types of federal rules interpreting the Clean Water Act. Filing a claim in the wrong court can result in losing the right to challenge the rule at all. Under a plain reading of Act, affected parties have six years to challenge the WOTUS rule or any subsequent rule defining the agency's general jurisdiction under the Act in a federal district court. But under the EPA's reading of the Act, affected parties would have only six months to challenge the rule in a federal court of appeals. Various State, industry, and landowner groups urge the High Court to rely on a plain reading of the Act to maximize the opportunity for the regulated public to challenge rules that define the scope of the Act.

On January 22, the Supreme Court released a unanimous decision authored by Justice Sotomayor holding that any challenges to WOTUS must be filed in federal district courts.

Featuring:
Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law and Director of the Center for Business Law & Regulation, Case Western Reserve University 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.

On January 22th, the Supreme Court handed down a decision for District of Columbia v. Wesby. In this case, law enforcement officers responded to noise complaints of a party going on in a home where the owner was not present. The officers removed partiers from the premises though the partiers thought that their host, a renter, had attained permission for the party. The case seeks to answer two questions: First, whether officers have probable cause to arrest for unlawful entry under D.C. law despite a claim of good-faith entry? Second, whether the law was sufficiently clearly established to justify the denial of immunity to the officers?
Bryan Weir joins us to discuss the implications of the decision.
Featuring:
Bryan Weir, Associate, Consovoy McCarthy Park 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.

In the recent Restoring Internet Freedom order, the Federal Communications Commission, led by Chairman Ajit Pai, voted to repeal the Obama administration’s network neutrality rules and restore the historical classification of broadband Internet as a lightly-regulated information service. A fierce public debate has emerged on the rulemaking’s implications for investment, innovation, competition, and consumer access to online content. In predicting the future Internet landscape, advocates on both sides have focused on the experiences of foreign jurisdictions in regulating both ISPs and edge providers, and how sanctions on content prioritization have affected consumers abroad.
This Teleforum features a distinguished panel with expertise in European, African, Asian, Latin American, and Canadian telecommunications law, and considers lessons from foreign regulators’ attempts to police the Internet ecosystem.
Featuring:
Professor Eli Noam, Paul Garrett Professor of Public Policy and Business Responsibility, Columbia Business School
Professor Roslyn Layton, PhD Fellow for the Center for Communication, Media and Information Studies at Aalborg University and Visiting Scholar at the American Enterprise Institute
Paul Beaudry, Professor, Lawyer and Research Associate, Montreal Economic Institute


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 January 10th, Michael Granston, the Director of the Commercial Litigation Branch within the United States Department of Justice’s Fraud Section, issued a memo that establishes an outline for DOJ attorneys to utilize when deciding whether or not to dismiss a False Claims Act qui tam case.
The memo affirms statements Granston made at a health care compliance conference in 2017, in which Granston indicated the DOJ might start dismissing qui tam causes of action brought by False Claims Act relators when it is determined the actions lack merit. 31 U.S.C. § 3730(c)(2)(A) provides that the government has a right to dismiss a qui tam action “notwithstanding the objections of the person initiating the action” by filing a motion with the court and provided the relator has had an opportunity to be heard. This ability in the past has been rarely used, and this memo could signify a significant shift in future DOJ practices.
Brandon J. Moss will join us to discuss the memo and its implications.
Featuring:
Brandon J. Moss, Associate, Wiley Rein

On Friday, February 2, President Trump agreed to release a memo written by the House Intelligence Committee about FBI surveillance activity of the members of the Trump campaign that occurred before the President took office. Those opposed to the release of the Nunes Memo, named for the Representative whose aids drafted the memo, argue that the release goes against intelligence protocol and is being utilized by Republicans to distract from the investigation in Russian interference in the 2016 election. Proponents of the release argue that it should be public to show the American people the actions of the FBI preceding the election. David Rivkin joins us to discuss the memo release and its possible effects.
Featuring:
David B. Rivkin Jr., Constitutional Lawyer and Former White House Counsel

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.

In December, the NLRB released many important decisions. John Raudabaugh, Former NLRB Member, will join us to discuss the new developments, including:
UPMC Presbyterian Hospital, 365 NLRB No. 153 (December 11, 2017) overruled United States Postal Service, 364 NLRB No. 116 (2016) reinstating administrative law judge authority to accept settlements over the objection of the NLRB General Counsel and the charging party considering Independent Stave reasonableness factors.
The Boeing Company, 365 NLRB No. 154 (December 14, 2017) issues a new test for evaluating workplace rules. No longer will the Board consider whether rules “chill” employee rights. Rather, if the rule is not explicitly unlawful, its potential impact on protected concerted activity and the employer’s legitimate business justifications will be evaluated to determine legitimacy.
Joint employer status was returned to prior, common-law standards in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (December 14, 2017). The new Board majority overturned the 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015).
PCC Structurals, Inc., 365 NLRB No. 160 (December 15, 2017) overruled the Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) decision, which legitimized “micro-units,” allowing unions to organize whatever group, no matter how small. The Board majority abandoned the employer burden of establishing an “overwhelming” community of interest standard and returned to traditional criteria.
An employer’s ability to implement changes to established benefit plans was restored in Raytheon Network Centric Systems, 365 NLRB No. 161 (December 15, 2017). The Board majority overruled E.I. du Pont de Nemours, 364 NLRB No. 113 (2016) reasoning that actions are not a “change” if similar in kind and degree with established past practice of comparable unilateral action.
Featuring:
John Raudabaugh, Staff Attorney, National Right to Work Foundation; Former Member, National Labor Relations

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 courts and Congress have long acknowledged the sovereign status of Native American tribes. Tribes, like states and related instrumentalities such as public universities, may invoke sovereign immunity to avoid being hauled into federal court and other legal proceedings. A new and unlikely twist brings tribal immunity to the most unlikely of forums for the latest battle, the Patent Trial and Appeal Board. This teleforum will explore the growing and hotly contested trend of Native American tribes as patent owners and debate the arguments for and against tribal immunity.
In 2017, Allergan assigned a portfolio of patents for it popular Restasis eye drops to the St. Regis Mohawk. At the time, the patents were the subject of district court litigation Allergan brought against several generic drug companies that had filed Abbreviated New Drug Applications. At the same time, the ANDA filers petitioned the PTAB to revoke Allergan’s patents. After trial but before final judgment, Allergan assigned its patents to the Mohawk tribe. The tribe moved to terminate the Inter Partes Review (IPR) proceedings at the PTAB. What has followed has been months of briefing that has drawn extraordinary attention, including numerous amicus briefs, to the PTAB.
Featuring:
Prof. Gregory Ablavsky, Stanford Law School
Mr. Aaron Cooper, Vice President, Global Policy, BSA | The Software Alliance
Mr. Michael Shore, Partner, Shore Chan Depumpo LLC
Moderator: Mr. Brian Pandya, Partner, Wiley Rein 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.

Deputy Attorney General Rod Rosenstein announced on Nov. 29 that the Department of Justice Foreign Corrupt Practices Act “Pilot Program,” which was introduced in 2016, will be made permanent. The program establishes a presumption of a declination of prosecution if a corporation timely and voluntarily discloses alleged corrupt conduct, fully cooperates with the Department of Justice, engages in timely and appropriate remediation, and does not otherwise present with any aggravating circumstances. Contrary to prior practice, however, the policy also suggests that such declinations would be accompanied by public pronouncements of the company’s alleged wrongful conduct, notwithstanding the declination.

George Terwilliger and John Richter will be joining us for this Teleforum to discuss the following elements surrounding this announcement: the disclosure dilemma and how the policy affects it, the fine print to consider before rushing into disclosure, how FCPA prosecutors may define “repeat offenders,” thereby disqualifying a company from voluntary disclosure benefits, and the implications of a policy encouraging public pronouncements of wrong doing based on a declination of uncharged and unproved conduct.

Featuring:
John C. Richter, Partner, King & Spalding
Hon. George J. Terwilliger, III, Partner, McGuireWoods 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.