FedSoc Forums

On May 22, the Supreme Court threw out two North Carolina congressional districts as discriminatory. State legislatures face confusion over how to redistrict without violating either the Voting Rights Act or the Equal Protection Clause of the 14th Amendment. What does this case mean for the redistricting that will occur throughout the country after the 2010 Census? How can courts distinguish between legally acceptable partisan and unacceptable racial motives in redistricting when certain racial groups disproportionately support one particular political party? Hans von Spakovsky, a former commissioner on the Federal Election Commission and former Counsel to the Assistant Attorney General for Civil Rights at the U.S. Justice Department, discussed these issues and the Cooper decision. -- Featuring: Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, The Heritage Foundation.

On May 22, 2017, the Supreme Court handed down its unanimous opinion in the closely-watched TC Heartland LLC v. Kraft Foods Group Brands LLC case. The patent venue statute provides that a domestic corporation may be sued for patent infringement anywhere the defendant “resides,” and the question before the Court was whether that rule incorporates the broader definition of corporate residence found in the general venue statute. The district court and the Court of Appeals for the Federal Circuit both held that it did, thus giving patent owners more choices of where they could sue for infringement. However, the Supreme Court reversed, holding that a corporate defendant only “resides” in its state of incorporation. -- While the Supreme Court rested its opinion solely on the statutory language and its own precedent interpreting it, many of the arguments raised in the amicus brief supporting both sides focused on the policy implications. In particular, the briefs argued that the Court should consider the effect its decision would have on certain patent assertion entities (PAEs) or “patent trolls”—non-practicing patent owners who litigate their patents, oftentimes in the Eastern District of Texas. Whether such arguments persuaded the Court is unclear, though it is clear that the Court’s narrow rule for where patent owners may sue will change the litigation landscape for practicing and non-practicing entities alike. -- Featuring: Mr. William J. Brown, Jr., Managing Partner, Brown Wegner LLP and Prof. J. Devlin Hartline, Assistant Director, Center for the Protection of Intellectual Property (CPIP) and Adjunct Professor, Antonin Scalia Law School, George Mason University.

In a recent decision, the Third Circuit held that hundreds of state-law claims alleging that bone fractures were caused by an osteoporosis medication were not preempted by federal law. While defendants argued, and the district court agreed, that the record showed that the FDA would not have approved stronger warnings in the product labeling, the Third Circuit concluded that the record raised factual issues that should go to a jury. In doing so, the court rejected defendants’ contention that preemption was a purely legal issue for the court to decide and suggested that the evidence must show that there was a “high probability” that the FDA would have rejected stronger labeling in order to invoke preemption. Was the appellate court correct? How does its decision fit with other recent preemption cases? Jay Lefkowitz and Doug Smith joined us to discuss these and other issues relating to the court’s decision. -- Featuring: Jay P. Lefkowitz, P.C., Partner, Kirkland & Ellis LLP and Douglas G. Smith, P.C., Partner, Kirkland & Ellis LLP.

On January 30, 2017, President Trump issued an Executive Order entitled Reducing Regulation and Controlling Regulatory Costs. The Executive Order instructs federal agencies to identify two existing regulations for repeal for each new regulation proposed. The Order further instructs the Director of the Office of Management and Budget to set an incremental cost target for each agency for each future fiscal year. Subject to certain exceptions, each agency must meet its target by offsetting the costs of new regulations by cost savings from repealed rules. -- A lawsuit has been filed challenging the legality of the Executive Order in federal district court in Washington, D.C. The complaint argues, among other things, that the Order violates the separation of powers, the President's obligations under the Take Care Clause, and the Administrative Procedures Act. Thomas M. Johnson, Jr., is the Deputy Solicitor General of West Virginia and counsel of record on an amicus brief co-filed with the State of Wisconsin on behalf of a 14-state coalition supporting the legality of the Executive Order. Mr. Johnson joined us to discuss the Order and the pending litigation. This Teleforum is the fourth in our Executive Order Teleforum Series. -- Featuring: Thomas M. Johnson, Jr., Deputy Solicitor General of West Virginia.

When is an alleged injury “concrete and particularized” under Article III of the U.S. Constitution? Spokeo, a self-proclaimed “online people search” site, was sued by Thomas Robins for publishing false information about him, which he claimed damaged his employment prospects. After being dismissed by the District Court and the Ninth Circuit for failing to state an injury “in fact,” the case was appealed to the Supreme Court where, one year ago, a 6-2 decision saw the Court vacate and remand the case. Legal experts Jeffrey Jacobson and Alan Raul joined us as we discussed the lasting implications of this decision on its first anniversary. -- Featuring: Jeffrey S. Jacobson, Partner, Kelley Drye & Warren LLP and Alan Charles Raul, Partner, Sidley Austin LLP.

Popular legend has it that before the Federal Radio Commission was established in 1927, the radio spectrum was in chaos, with broadcasting stations blasting powerful signals to drown out rivals. In this fascinating and entertaining history, Prof. Thomas Winslow Hazlett, a distinguished scholar in law and economics, debunks the idea that the U.S. government stepped in to impose necessary order. Instead, regulators blocked competition at the behest of incumbent interests and, for nearly a century, have suppressed innovation while quashing out-of-the-mainstream viewpoints. -- In his book, The Political Spectrum: The Tumultuous Liberation of Wireless Technology, from Herbert Hoover to the Smartphone, Prof. Hazlett details how spectrum officials produced a “vast wasteland” that they publicly criticized but privately protected. The story twists and turns, as farsighted visionaries—and the march of science—rise to challenge the old regime. Over decades, reforms to liberate the radio spectrum have generated explosive progress, ushering in the “smartphone revolution,” ubiquitous social media, and the amazing wireless world now emerging. Still, the author argues, the battle is not even half won. -- Featuring: Prof. Thomas W. Hazlett, H.H. Macaulay Endowed Professor of Economics, Clemson College of Business.

On May 4, President Trump signed a Religious Liberty Executive Order relaxing IRS enforcement of the Johnson Amendment, which bans tax-exempt organizations like churches from political speech and activities. The “Promoting Free Speech and Religious Liberty” Executive Order also directs “the Secretary of Health and Human Services” to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.” -- An earlier version of the Executive Order was leaked in February, and contained many provisions, specifically about LGBTQ discrimination and federal contractors, which did not make it into the final. Prof. Carl Esbeck of the University of Missouri School of Law and Mr. Gregory Baylor of the Alliance Defending Freedom joined us to discuss the order and its precursor. This Teleforum is the third in our Executive Order Teleforum Series. -- Featuring: Mr. Gregory Baylor, Senior Counsel & Director of the Center for Religious Schools, Alliance Defending Freedom and Prof. Carl Esbeck, R.B. Price Professor Emeritus of Law/ Isabelle Wade & Paul C. Lyda Emeritus of Law, University of Missouri School of Law.

On April 20th, eleven state Attorneys General filed a joint amicus brief in support of ExxonMobil and its request to stop an investigation into allegations of fraud and deceptive practices surrounding the relationship between fossil fuels and climate change. Texas AG Ken Paxton was joined by ten other state Attorneys General on the brief in a New York District Court. On May 9, AG Paxton joined us to share his views on the underlying investigation, whether it impinges on Exxon’s free speech protections, and the ramifications a potential lawsuit could have on the fossil fuels industry. -- Featuring: Hon. Ken Paxton, Attorney General, Texas.

Since the Supreme Court’s June 2016 decision in Universal Health Services, Inc., v. United States ex rel Escobar, 136 S. Ct. 1989 (2016), there has been much discussion about whether the Court’s reformulation of the standards applicable to implied false certification benefits relators or defendants. However, the use of implied certification by relators and the DOJ to impose on defendants their interpretation of a regulation or term of a contract or grant has received much less attention. -- Increasingly, relators and the DOJ have been using the FCA to pursue civil fraud claims not based on factual misrepresentations, but rather on the relator’s or the Government’s view of what the “correct” interpretation of a regulation or a contract or grant term should be. It is not unusual for that interpretation to be different than the interpretation advanced in the promulgation of the regulation or different than the approach practiced by the promulgating agency. As the DOJ speaks officially for the sovereign United States, the DOJ (and relators suing on behalf of the United States) reserves the right to make interpretative disagreements into claims of fraud. -- This teleforum will explore implied certification where the dispute involves issues of regulatory or contractual interpretation and whether such a matter is really an administrative law dispute or fraud. -- Featuring: Marcia G. Madsen, Partner, Mayer Brown LLP and Brian D. Miller, Shareholder, Rogers Joseph O’Donnell.

Since the Supreme Court’s June 2016 decision in Universal Health Services, Inc., v. United States ex rel Escobar, 136 S. Ct. 1989 (2016), there has been much discussion about whether the Court’s reformulation of the standards applicable to implied false certification benefits relators or defendants. However, the use of implied certification by relators and the DOJ to impose on defendants their interpretation of a regulation or term of a contract or grant has received much less attention. -- Increasingly, relators and the DOJ have been using the FCA to pursue civil fraud claims not based on factual misrepresentations, but rather on the relator’s or the Government’s view of what the “correct” interpretation of a regulation or a contract or grant term should be. It is not unusual for that interpretation to be different than the interpretation advanced in the promulgation of the regulation or different than the approach practiced by the promulgating agency. As the DOJ speaks officially for the sovereign United States, the DOJ (and relators suing on behalf of the United States) reserves the right to make interpretative disagreements into claims of fraud. -- This teleforum will explore implied certification where the dispute involves issues of regulatory or contractual interpretation and whether such a matter is really an administrative law dispute or fraud. -- Featuring: Marcia G. Madsen, Partner, Mayer Brown LLP and Brian D. Miller, Shareholder, Rogers Joseph O’Donnell.