FedSoc Forums

On Monday, December 4, 2017, the Supreme Court will hear oral argument in Christie v. National Collegiate Athletic Association, No. 16-476, and New Jersey Thoroughbred Horsemen’s Association, Inc. v. National Collegiate Athletic Association, No. 16-477, its first anti-commandeering cases in years. As explained and affirmed by the Court in New York v. United States and Printz v. United States, under the anti-commandeering principle, Congress lacks the power to regulate state governments’ regulation. At issue on Monday is whether a federal law—the Professional and Amateur Sports Protection Act of 1992 (PASPA)—may constitutionally bar the State of New Jersey from repealing existing state law that prohibits sports wagering to the extent the law applies at casinos and racetracks. Petitioners contend that PASPA is an unconstitutional attempt by Congress to dictate state law. Respondents argue that PASPA does not bar New Jersey from repealing existing law but merely preempts the State from affirmatively authorizing sports wagering. They contend that the alleged “repeal” is in reality an attempt by New Jersey to selectively authorize sports wagering, which is lawfully preempted by PASPA. The decision in these cases could have broad implications for the line between impermissible commandeering and permissible preemption.
Featuring:
Mr. Elbert Lin, Partner, Hunton & Williams LLP

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On December 5th, The Supreme Court will hear oral arguments in Masterpiece Cakeshop v. Colorado CRC. The case, one of the most highly publicized of the term, involves questions of religious liberty, expressive acts, and compelled speech.
Two men, Charlie Craig and David Mullins, were planning their wedding and sought a wedding cake from Jack Phillips, the owner of Masterpiece Cakeshop. Phillips told the men that he could not make them a cake, citing his religious beliefs. The Colorado Civil Rights Commission determined that Phillips was discriminating against the couple on the basis of sexual orientation. Phillips was told to “cease and desist” such discrimination and was ordered to provide “remedial measures.” As a result, Phillips stopped offering custom cakes entirely.
The case deals with the balance of religious liberties and equality through anti-discriminatory laws. It also involves the Free Speech Clause, as Phillips considers his custom cakes art and himself an artist. Phillips and many others see the “cease and desist” as a form of compelled speech, since he would be legally obligated to create art with a message he does not support.
Kim Colby, Director at the Center for Law & Religious Freedom at the Christian Legal Society, will attend oral argument and join us to discuss her impressions.

Featuring:
Kim Colby, Director, Center for Law & Religious Freedom, Christian Legal Society

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In what some see as a surprise move, the Department of Justice filed suit to block the AT&T-Time Warner merger, claiming the merger would harm consumers, innovation, and competition. AT&T has announced that it plans to fight the challenge in court, asserting that it and Time Warner are not competitors, that the merger would allow AT&T to compete with Google and Facebook, and that the Justice Department has a long history of approving such vertical mergers. In addition to contrasting interests in vertical versus horizontal mergers, the case presents an opportunity to examine structural remedies (including a requirement that merging companies spin off certain assets to gain merger approval) versus consent decrees, which typically restrict company behavior after a merger is completed and might require monitoring of the merged entity by the government. These and other issues will be discussed.

Featuring:
Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law

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While working for Digital Reality Trust, Paul Somers filed reports to senior management concerned about possible violations of securities fraud. Somers was subsequently fired from his position and sued under the anti-retaliation clause for whistleblowers of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The company said that because Somers was not reporting to the Securities and Exchange Commission, Somers was not protected by Dodd-Frank. The district court rejected this argument, citing a decision by the Second Circuit, which said that the protections extended to internal reporting as well. The Ninth Circuit affirmed the district court’s decision. However, the Fifth Circuit in the past has read Dodd-Frank more narrowly and stated that the protections only apply when the reporting was done to the SEC. The Supreme Court will decide whether the definition of whistleblower in the act is restricted to those who file with the SEC and therefore if Somers was entitled to anti-retaliation protection.
Featuring:
Todd Braunstein, Global Head of Legal Investigations, Willis Towers Watson

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Arrests made in an armed robbery case occurred because the Federal Bureau of Investigation was able to obtain “transactional records” of the cell phones owned by the alleged coconspirators. These records track the date and time of a call and the approximate position of the caller. The records were collected under the Stored Communications Act of 1986, which allows the government certain kinds of telecommunications records relevant to an ongoing criminal investigation. The defendants wanted the stored data to be inadmissible because the FBI failed to get a search warrant to acquire the records, thereby violating the Fourth Amendment. The district court dismissed this argument and the Sixth Circuit Court affirmed the district court’s decision. The Supreme Court will decide if the warrantless procurement of cell phone information, including location of the phone, is a violation of the Fourth Amendment. ˈ
Featuring:
Orin S. Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School
Michael Sussmann, Partner, Perkins Coie LLP

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Oral arguments for a case involving a Denver-based, Christian baker are slated for December 5th of this year. The case tackles questions of religious liberty, expressive acts, and compelled speech. Two men, Charlie Craig and David Mullins, were planning their wedding and sought a wedding cake from Jack Phillips, the owner of Masterpiece Cakeshop. Phillips told the men that he could not make them a cake, citing his religious beliefs. The Colorado Civil Rights Commission determined that Phillips was discriminating against the gay couple on the basis of sexual orientation. Phillips was told to “cease and desist” such discrimination and was ordered to provide “remedial measures”. As a result, Phillips stopped offering custom cakes entirely.
The case deals with the important act of determining the religious liberties of persons while balancing the promotion of equality through anti-discriminatory laws. Furthermore, questions of free speech arise. Phillips considers his custom cakes an art and himself an artist. Phillips and many others see the “cease and desist” as a form of compelled speech, since he would be legally obligated to create art with a message he does not support.
Featuring:
Eric Rassbach, Deputy General Counsel, The Becket Fund
Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law

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Oil States Energy Services v. Greene’s Energy Group

Has the administrative state gone too far into disputes over innovation and technology? That question animates Oil States Energy Services v. Greene’s Energy Group. The Supreme Court will hear arguments on Monday, November 27 over whether the Patent Trial & Appeal Board violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.

SAS Institute v. Matal

In SAS Institute v. Matal, the question presented is, in the context of post-grant review of a patent under the America Invents Act (“AIA”), whether the Patent Trial and Appeal Board (“PTAB”) must issue a final written decision on the validity of every patent claim challenged, or can the PTAB rule on only some of the patent claims challenged. This case involves a relatively confined question of statutory construction, but, assuming the Supreme Court does not dismantle the AIA’s post-grant review system in Oil States, SAS Institute has the potential to dramatically change post-grant patent challenges.

The statute at issue, 35 U.S.C. 318(a), mandates: “If an inter partes review is instituted . . . , the Patent Trial and Appeal Board shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner . . . .” The Patent Office interprets this provision to mean that the PTAB need provide a final written decision on only the claims the PTAB reviews in full. Thus, under current practice, a patent challenger can ask the PTAB to cancel all claims of a patent when filing an IPR petition, but the PTAB may institute full review of only some of the claims. The final written decision is limited to only those claims the PTAB reviews in full. Petitioner in SAS Institute challenges this practice, arguing that the plain text of the statute, along with the statutory text and purpose, requires a decision on all challenged claims.

The case has important implications about the AIA process, the degree to which AIA review of patents creates finality to patent validity determinations, and the applicability of Chevron deference to the Patent Office’s rules and procedures.

Featuring:
Mr. Matthew J. Dowd, Founder, Dowd PLLC
Mr. Brian H. Pandya, Partner, Wiley Rein

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