FedSoc Forums

On June 27, 2016, the United States Supreme Court issued a unanimous opinion in Robert F. McDonnell v. United States. The Court vacated the public corruption convictions of former Virginia Governor Bob McDonnell, finding that the prosecution failed to properly instruct the jury on the definition of an “official action” as used in the federal bribery statute, Hobbs Act, and honest-services fraud statute. However, the Court rejected McDonnell's claims that the honest services statute and Hobbs Act are unconstitutional, and left the Court of Appeals to reconsider whether McDonnell had committed an "official act" under the Court's new definition. Our experts discussed the impact of the opinion, and debated its merits, as it relates to public corruption law and the criminal law more generally, as well as to the First Amendment and campaign finance law. -- Featuring: Prof. Randall D. Eliason, George Washington University Law School; William J. Haun, Associate, Hunton & Williams LLP; Stephen R. Klein, Attorney, Pillar of Law Institute; and Tara Malloy, Deputy Executive Director, Campaign Legal Center.

On May 18, 2016, President Obama and the Secretary of Labor announced new overtime regulations that will increase the number of workers receiving overtime to all those making under $913/week. In doing so, 4.2 million more workers will be eligible for overtime by December 1, 2016. Advocates assert that the new regulation will bring more families closer to a living wage. Businesses argue that the regulations will inflict costs they will not be able to cover without decreasing base salaries or lowering the number of employees. Legislation is pending in the House and Senate that would prevent the Department of Labor from passing the regulation until they have completed “full and complete economic analysis” and worked to “minimize the impact on such employers, before promulgating any substantially similar rule” (H.R. 2016). Business interests are mobilizing to file a complaint as well. Our labor and employment experts discusses the case. -- Featuring: Tammy D. McCutchen, Shareholder, Littler Mendelson, PC and Elizabeth K. Dorminey, Of Counsel, Wimberly, Lawson, Steckel, Schneider & Stine P.C.

On June 23, 2016, the United States Supreme Court issued a 4-3 decision in Fisher v. University of Texas, upholding the University’s affirmative action program. It also announced a 4-4 tie in United States v. Texas, affirming the decision of the Fifth Circuit to block President Obama’s executive order on immigration. Our experts discussed both developments and answered audience questions. -- Featuring: Prof. Josh Blackman, Assistant Professor of Law, South Texas College of Law; Roger B. Clegg, President and General Counsel, Center for Equal Opportunity; and Hon. Hans A. von Spakovsky, Senior Legal Fellow, The Heritage Foundation.

On the eve of the British referendum to remain in the European Union, Phillip Booth of the Institute of Economic Affairs and Ilya Somin of George Mason University Law School discussed broader issues of devolution and secession, such as the extent to which secession should be allowed from various political systems and whether or not a right to it should be institutionalized. The also took a closer look at the possibility of a British exit, and what that would mean for the European Union and Britain as a whole. -- Featuring: Prof. Philip Booth, Editorial and Programme Director at the Institute of Economic Affairs and Professor of Insurance and Risk Management at Cass Business School and Prof. Ilya Somin, Professor of Law, George Mason University School of Law.

On Monday, June 20, the United States Supreme Court released its decision in RJR Nabisco, Inc. v. The European Community. The case arose in the 2nd Circuit. The European Community, now the European Union, alleged that RJR participated in a scheme to launder illegal drug sale proceeds in Europe and attempted to sue in the United States' courts. The Court held that they could not sue under RICO, the Racketeer Influenced and Corrupt Organizations Act, because irrespective of any extraterritoriality of the law's substantive provisions, a private right of action does not overcome the presumption against extraterritoriality and thus a private plaintiff must allege and prove a domestic injury. -- Featuring: Cory L. Andrews, Senior Litigation Counsel, Washington Legal Foundation.

On June 20, 2016, the Supreme Court decided Cuozzo Speed Technologies v. Lee. In this case, the Supreme Court examined two provisions of the inter partes review, a proceeding created to provide a cost-effective alternative to litigation for resolving certain challenges to patent validity. -- Cuozzo Speed Technologies (Cuozzo) owns a speed limit indicator patent. Garmin International (Garmin) petitioned the US Patent and Trademark Office (PTO) for inter partes review of Cuozzo’s patent. The Patent Trial and Appeal Board of the PTO agreed to reexamine claim 17, as requested by Garmin, as well as claims 10 and 14. After the inter partes review proceeding, the Board concluded that all three claims (10, 14, and 17) were invalid. Cuozzo appealed to the U.S. Court of Appeals for the Federal Circuit, arguing that 1) the Board improperly instituted inter partes review of claims 10 and 14, because Garmin had not challenged these claims and 2) that the Board improperly used a claim construction standard set forth by PTO regulation calling for claim terms to be given their “broadest reasonable construction,” a standard that differs from that used in district court litigation (“ordinary meaning”). A divided Federal Circuit rejected both arguments, noting that 1) decisions to institute inter partes reviews are nonappealable by statute and 2) that the application of the broadest reasonable construction standard was a reasonable exercise of the PTO’s rulemaking authority. The Supreme Court granted certiorari to review both issues. -- With respect to the appealability of decisions to institute inter partes review, the Supreme Court agreed with the Federal Circuit. 35 U.S.C. § 314(d) states “The determination by the Director [of the PTO] whether to institute an inter partes review under this section shall be final and non-appealable.” The statute means what it says. With respect to the claim construction standard, the Supreme Court also agreed with the Federal Circuit, holding that the PTO has the authority to issue and abide by its broadest reasonable construction regulation. -- Our expert discussed the opinion of the Court, delivered by Justice Breyer, including the Supreme Court’s reasoning behind the holdings in Cuozzo Speed Technologies, as well as a concurrence authored by Justice Thomas and an opinion concurring-in-part and dissenting-in-part written by Justice Alito and joined by Justice Sotomayor. -- Featuring: Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law.

On Wednesday, June 14, the D.C. Circuit Court of Appeals upheld the Federal Communications Commission’s controversial reclassification of broadband internet service as a telecommunications service subject to common carrier regulation under Title II of the Communications Act. The case, which many observers believe may ultimately end up before the United States Supreme Court, touches on major questions about the Communications Act, as well as First Amendment issues and larger administrative law controversies, including Chevron deference. Our experts discussed all of these angles and the outlook for the case going forward. -- Featuring: Brett A. Shumate, Partner, Wiley Rein LLP and Adam J. White, Research Fellow, Hoover Institution.

If you do business with the federal government, when does violating a statute, regulation, or contract provision become fraud? This question was answered by the U.S. Supreme Court on June 16 in Universal Health Services v. United States ex rel. Escobar, which examines the scope of the False Claims Act (FCA). The FCA provides for treble damages and civil fines for anyone submitting false claims for payment to the federal government. Violations of the FCA must involve a “false or fraudulent claim” or “a false record or statement material to a false or fraudulent claim.” Traditionally, the falsity element of an FCA claim required a “factual falsehood” (e.g., submitting a claim for payment for 10 computers when only 5 were delivered) or an express false certification (e.g., certifying to a lack of organizational conflicts of interest when such conflicts exist). Circuit Courts had split on this question, but the Supreme Court ruled today that a party can be held liable under the implied false certification theory when the party “fails to disclose noncompliance with material statutory, regulatory, or contractual requirements that make those representations misleading with respect to goods and services.” This decision has significant implications for anyone doing business with the federal government and could substantially increase contractors’ exposure to the FCA’s punishing statutory regime. -- Featuring: Shane B. Kelly, Associate, Wiley Rein LLP and Mark B. Sweet, Partner, Wiley Rein LLP.

On June 13, 2016, the Supreme Court decided Halo Electronics v. Pulse Electronics and a consolidated case, Stryker Corp. v. Zimmer. In each of these patent infringement cases, a jury had found the accused infringer liable for infringing the patent, and having done so willfully. In the Halo case, the district court declined to award enhanced damages and the Federal Circuit affirmed. In the Stryker case, the district court awarded enhanced damages, but the Federal Circuit vacated that award. The Supreme Court took the cases to determine whether the Federal Circuit’s two-part test for enhanced damages was consistent with 35 U.S.C. § 284. -- Chief Justice Roberts delivered the opinion of the court, vacating the Federal Circuit’s judgments in both cases because the appellate court’s test for enhanced damages did not permit the district court to exercise the discretion afforded by § 284. The Federal Circuit’s test, adopted in In re Seagate Technology, required first that a patent owner must prove “that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent” and second, that the risk of infringement “was either known or so obvious that it should have been known to the accused infringer.” Both prongs of the test must be shown by clear and convincing evidence. In its opinion, the Supreme Court notes that the Seagate test properly reflects that enhanced damages are available only in egregious cases; however, the test is far too rigid to reflect the level of discretion afforded to the district courts. -- Featuring: Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law.

On June 13 the United States Supreme Court issued its opinion in Puerto Rico v. Franklin California Tax-Free Trust, finding that Chapter 9 of the federal Bankruptcy code preempts Puerto Rico’s Recovery Act. The decision prevents Puerto Rico from adopting a settlement plan for its debt through its own legislation and requires it to depend on Congress for a solution. Our experts discussed the opinion and its implications. -- Featuring: Prof. G. Marcus Cole, William F. Baxter-Visa International Professor of Law, Stanford Law School and Prof. David Skeel, S. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Law School.