FedSoc Forums

This week the Supreme Court will hear arguments in Whole Woman’s Health v. Hellerstedt, also known as the Texas Abortion Case. Oral arguments will discuss whether the recently-enacted Texas law on abortion passes the constitutional test. Our expert gave our listeners background information on the case and reported on what transpires during oral argument. -- Featuring: Roger Severino, Director, DeVos Center for Religion and Civil Society, The Heritage Foundation.

On March 2, 2016 the Supreme Court will hear arguments in Whole Woman’s Health v. Hellerstedt, also known as the Texas Abortion Case. Arguments will discuss whether when applying the “undue burden” standard of the Supreme Court’s landmark ruling of the 1992 case, Planned Parenthood v. Casey, a court is mistaken by refusing to consider whether and to what extent laws that regulate abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health. Does the Texas state law pass the constitutional test? How far-reaching will this case be? -- Featuring: Brianne Gorod, Chief Counsel, Constitutional Accountability Center and Lee Rudofsky, Solicitor General, Arkansas.

In 1981, President Reagan signed Executive Order 12333. It assigned foreign intelligence collection responsibilities to the agencies that make up the Intelligence Community. Among those responsibilities is electronic surveillance. Following the Edward Snowden disclosures, President Obama placed additional restrictions on the collection and use of certain foreign intelligence, and privacy advocates have argued that additional scrutiny must be applied to electronic surveillance related to Executive Order 12333. Our experts discussed how such collection works, how the intelligence is used, and how this activity supports national security. -- Featuring: Matthew G. Olsen, President, IronNet Cybersecurity and David R. Shedd, Distinguished Fellow, Heritage Foundation, Adjunct Professor, Patrick Henry College. Moderator: Matthew R.A. Heiman, Vice President, Chief Compliance & Audit Officer, Tyco International.

A former Director of the United States Patent and Trademark Office and former Chief Judge for the U.S. Court of Appeals for the Federal Circuit have recently opined that new changes to the Federal Rules, which heighten pleading standards in patent litigation cases, go a long way to correcting perceived problems in the current patent litigation regime. They claim that, unlike some proposals being contemplated in Congress, these judicially-imposed corrections offer a solution without reducing judicial flexibility. -- Featuring: Robert T. Haslam, Partner, Covington & Burling LLP and Hon. Paul R. Michel, U.S. Court of Appeals, Federal Circuit (ret.). Moderator: Prof. Adam Mossoff, Co-Director of Academic Programs and Senior Scholar, Center for the Protection of Intellectual Property, George Mason University School of Law.

All eyes are on the United States Supreme Court as it prepares to hear oral argument in U.S. v. Texas, which will examine the President's executive actions on immigration. In addition to complex questions about standing and administrative law, the Court has, on its own initiative, added a Take Care Clause question to the argument. Our experts previewed the oral arguments, the major points to be made by both sides, and the stakes. -- Featuring: Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law and Prof. Kevin R. Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, University of California, Davis, School of Law.

On January 15, 2015, the U.S. Supreme Court granted certiorari in Robert F. McDonnell v. United States. The Court will review the public corruption convictions of former Virginia Governor Bob McDonnell to determine whether the definition of “official action” as used in the federal bribery statute, Hobbs Act, and honest-services fraud statute is limited to exercising actual governmental power or the threat or pressure to do so. If the definition is not so limited, the Court will also consider whether the Hobbs Act and honest-services fraud statute are unconstitutional—given that such a broad definition could include political activity protected by the First Amendment. This Teleforum will allow experts who have been involved in amicus briefs and analyzing the case to debate the positions articulated by Governor McDonnell and the U.S. Government as to the "official act" question. -- Featuring: Brian D. Boone, Alston & Bird LLP and Prof. Randall D. Eliason, George Washington University Law School. Moderator: William J. Haun, Hunton & Williams LLP.

Mergers and other transactions between large telecommunications companies are always the subject of vigorous public debate, and recent developments in the area provide an excellent opportunity to explore many of the big questions in play. What is the future of media and telecom companies in today’s vast changing technology landscape? How important is scale? How should government assess the competition and public interest benefits and threats of proposed deals? What process should be employed by what agencies? How do the principles of net neutrality play into the equation? Our experts discussed these questions and others. -- Featuring: Hon. Michael Copps, Special Adviser, Media and Democracy Reform Initiative, Common Cause and William Rinehart, Director, Technology and Innovation Policy, American Action Forum. Moderator: Hon. Harold Furchtgott-Roth, Director, Center for the Economics of the Internet, Hudson Institute.

Corporate inversions are transactions, such as mergers or acquisitions, that involve a U.S. and foreign headquartered firm and result in the newly formed firm being headquartered outside the U.S. As a result, it can legally lower its U.S. taxes and enjoy parity with its foreign based competitors. Noting the resulting erosion to the U.S. tax base, critics argue that absent Congressional action the U.S. Treasury has a responsibility to fully utilize its existing authorities to combat this practice. But others are concerned that attempting to do so without addressing the underlying problems with the U.S. tax code will create even greater harm to the U.S. economy. Stephen Shay, Senior Lecturer on Law at the Harvard Law School and until recently the Deputy Assistant Secretary of the Treasury for International Tax Affairs and Mihir Desai, who holds appointments at both the Harvard Business School and Law School, provided perspectives from legal and economic vantage points. -- Featuring: Prof. Mihir A. Desai, Mizuho Financial Group Professor of Finance, Harvard Business School and Professor of Law, Harvard Law School and Prof. Stephen E. Shay, Senior Lecturer on Law, Harvard Law School.

If you do business with the federal government, when does violating a statute, regulation, or contract provision become fraud? This is the question facing the U.S. Supreme Court 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). But does submitting a claim for payment, by itself, represent to the government that all applicable legal requirements were followed such that failing to comply with those requirements renders the claims “false”? Circuit Courts have split on this question, and now the Supreme Court will decide. -- This case has significant implications for anyone doing business with the federal government. If the Court recognizes a so-called “implied certification” theory of liability, it could substantially increase contractors’ exposure to the FCA’s punishing statutory regime. -- Featuring: Shane B. Kelly, Associate, Wiley Rein LLP and Stephen J. Obermeier,Partner, Wiley Rein LLP.

In October of 2015, the European Court of Justice invalidated the EU-U.S. Safe Harbor agreement that allows for the transfer of personal data by U.S. companies that comply with a set of primary principles. Based in part on the Edward Snowden disclosures, the Court reasoned that U.S. law fails to provide adequate protection for such data. Now, businesses are implementing remediation plans to maintain legal compliance, and EU and U.S. negotiators are negotiating Safe Harbor 2.0. As a condition to a new agreement, some European policymakers are demanding that the U.S. reform its electronic surveillance programs. Our panel discussed these intersecting issues. -- Featuring: Stewart A. Baker,Partner, Steptoe & Johnson LLP and Susan L. Foster, Member, Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C. Moderator: Matthew R.A. Heiman, Vice President, Chief Compliance & Audit Officer, Tyco International.