FedSoc Forums

This past April, the Department of Education published a 423-page final rule amending its implementing for Title IX, which prohibits sex discrimination in federally-funded education programs and activities, with certain, important exceptions. The new rule was consistent with an order issued by President Biden on his first day in office that the Supreme Court’s 2020 decision in Bostock v. Clayton County be applied across the entire federal government.
Shortly after the new rule issued, at least ten separate lawsuits challenging it were filed by states, school districts, and parental rights groups in various federal jurisdictions. Thus far, the lawsuits have been uniformly successfully, with the rule now preliminarily enjoined in 26 states and numerous additional school districts. As oral argument is set to begin in the circuit courts on the government’s appeal, this webinar will review this litigation’s history, as well as preview its future, including what it might say about Bostock applicability outside of Title VII.
Featuring:


Donald A. Daugherty, Senior Counsel, Litigation, Defense of Freedom Institute

The Supreme Court has recently issued rulings in three cases involving speech-based arrests, demonstrating increased scrutiny of such incidents. In a span of four months, the Court reversed three lower court decisions that had previously granted immunity to government officials accused of arresting individuals for their speech.
The cases are Gonzalez v. Trevino, decided on June 20, 2024; Murphy v. Schmitt, summarily reversed on October 7, 2024; and Villarreal v. Alaniz, summarily reversed on October 15, 2024. These rulings allow the cases to proceed, giving the plaintiffs an opportunity to pursue legal action against the government officials responsible for their arrests. Despite the diverse factual backgrounds of these cases, the Court's consistent approach suggests a heightened focus on protecting First Amendment rights. The Supreme Court's recent decisions may have significant implications for First Amendment jurisprudence and future cases involving speech-related arrests.
Join us for a conversation about these three cases and their possible ramifications.
Featuring:

Anya Bidwell, Attorney, Institute for Justice

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.

Food and Drug Administration v. Wages and White Lion Investments, LLC (December 2) - Federalism & Separation of Powers; Issue(s): Whether the court of appeals erred in setting aside the Food and Drug Administration’s orders denying respondents’ applications for authorization to market new e-cigarette products as arbitrary and capricious.
U.S. v. Miller (December 2) - Bankruptcy; Issue(s): Whether a bankruptcy trustee may avoid a debtor’s tax payment to the United States under 11 U.S.C. § 544(b) when no actual creditor could have obtained relief under the applicable state fraudulent-transfer law outside of bankruptcy.
Republic of Hungary v. Simon (December 3) - International Law & Financial Services; Issue(s): (1) Whether historical commingling of assets suffices to establish that proceeds of seized property have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act; (2) whether a plaintiff must make out a valid claim that an exception to the FSIA applies at the pleading stage, rather than merely raising a plausible inference; and (3) whether a sovereign defendant bears the burden of producing evidence to affirmatively disprove that the proceeds of property taken in violation of international law have a commercial nexus with the United States under the expropriation exception to the FSIA.
U.S. v. Skrmetti (December 4) - Federalism & Separation of Powers& SOGI; Issue(s): Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment.
Kousisis v. U.S. (December 9) - Environmental Law & Financial Services; Issue(s): (1) Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme; (2) whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services; and (3) whether all contract rights are “property.”
Feliciano v. Department of Transportation (December 9) - Federal Employment Law; Issue(s): Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.
Seven County Infrastructure Coalition v. Eagle County, Colorado (December 10) - Environmental Law & Financial Services; Issue(s): Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.
Dewberry Group v. Dewberry Engineers (December 11) - Civil Procedure; Issue(s): Whether an award of the “defendant’s profits” under the Lanham Act can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates.

Featuring:

Boyd Garriott, Associate, Wiley Rein LLP
Eric N. Kniffin, Attorney, Kniffin Law PLLC, Fellow, Ethics and Public Policy Center
Michael Pepson, Regulatory Counsel, Americans for Prosperity Foundation
Alexandra Shapiro, Partner, Shapiro Arato Bach LLP
Jeff Stier, Senior Fellow, Consumer Choice Center
(Moderator) Tessa Shurr, Committee Staff, U.S. House of Representatives

Delligatti v. United States concerns whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.
Known by some as the "non-violent murder case" Delligatti ties into a larger conversation on the way "violent"/"use-of-force" crimes are defined categorically rather than on a solely case-by-case basis.
Oral Argument was heard on November 12, 2024.
Join us for this Courthouse Steps program where we break down and analyze OA and the potential outcomes of this case.
Featuring:

Robert K. McBride, Partner, Taft Stettinius & Hollister

In 1996, the FTC and DOJ issued Statements of Antitrust Enforcement Policy in Health Care. The statements addressed important topics, such as hospital mergers, information sharing, joint purchasing, and provider joint ventures. The DOJ withdrew the guidelines in February 2023, and the FTC followed in July. Some healthcare companies – and businesses in other sectors – that have established relationships in reliance on these statements are concerned as to whether long-running arrangements should be modified or terminated. This panel will discuss their perspectives on the withdrawal of the statements on future initiatives, and what previous arrangements may be at risk.
Featuring:

John Carroll, Partner in the Antitrust & Competition Practice Group, Sheppard Mullin
Richard Feinstein, Partner, Boies Schiller Flexner LLP, Former Director of the Bureau of Competition at the Federal Trade Commission
Laurel Kilgour, Research Manager, American Economic Liberties Project
Barry Nigro, Partner, Global Chair, Antitrust and Competition, Fried Frank
Prof. Barak Richman, Alexander Hamilton Professor of Business Law, George Washington University Law School
Moderator: Adam Biegel, Partner, Co-chair of the Litigation & Trial Practice Group, Alston & Bird

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Reducing the cost of prescription drugs has been a bipartisan priority for years. One recent effort is the Preserve Access to Affordadble Generics and Biosimilars Act (S. 142), sponsored by Sen. Klobuchar with the support of Sen. Grassley and others. This bill would give the FTC new authority to investigate settlements between branded and generic drug companies that delay generic/biosimilar market entry and are deemed anticompetitive. The bill proposes allowing the FTC to make factual findings and liability determinations that the district court applies when computing damages. Our expert panel will discuss whether this bifurcated administrative/judicial arrangement can be squared with SEC v. Jarkesy and more broadly discuss issues around patent settlements in the bio/pharma space.
Featuring:

Matthew S. Hellman, Partner, Jenner & Block
William M. Jay, Partner, Appellate & Supreme Court Litigation, Goodwin Procter LLP
Prof. Emily Michiko Morris, David L. Brennan Endowed Chair, Associate Professor, and Associate Director of the Center for Intellectual Property Law & Technology, The University of Akron School of Law
Matthew D. Rowen, Partner, Clement & Murphy PLLC
Moderator: Brian Pandya, Partner, Duane Morris LLP

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Discussions of the dangers of Artificial Intelligence (AI) have long included concerns about AI systems’ potential to discriminate against racial minorities, women, and other groups said to be disadvantaged. But more recently, there have been increasing concerns about the dangers of Woke AI. Because generative AI models learn from large amounts of real-world data, which is primarily gleaned from internet content and thus tends to reflect dominant cultural views, is some degree of political bias in these models inevitable? If not, what can be done to avoid such bias?
Increasingly, politicians and other policymakers are proposing laws, regulations, and guidelines aimed at preventing bias against minority groups in AI systems. Do we need similar laws to protect against the biases of Woke AI and if so, what should those laws look like?
Please join us as an expert panel discusses these questions and more.
Featuring:

Prof. Vincent Conitzer, Professor of Computer Science & Director, Foundations of Cooperative AI Lab (FOCAL), Carnegie Mellon University
Nicholas P. Garcia, Senior Policy Counsel, Public Knowledge
Curt Levey, President, Committee for Justice
(Moderator) Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law

Tennessee v. Cardona concerns the Biden Administration’s recent revisions to regulations under Title IX.
Particularly at issue are those provisions that redefine the term "sex" to include "gender identity" for purposes of the regulation. Six states, including Tennessee, along with an association of Christian educators and a female high-school student sued, alleging the regulation as amended threatened student privacy, safety, and free speech." They also sought an injunction to stop the full rule from going into effect based on the immediate and irreparable harm they argued it would cause. The District Court granted an injunction and the government’s request to stay the injunction was granted by the Sixth Circuit. The Supreme Court also denied the government’s application for a stay of the injunction. The case is now being argued on the merits.
Join us for a litigation update on this important case.

Featuring:

Whitney D. Hermandorfer, Director of Strategic Litigation Unit, Office of the Tennessee Attorney General
(Moderator) Samuel D. Adkisson, Associate, Cooper & Kirk, PLLC

The Atlantic City Fire Department requires all personnel who respond to fires or other emergencies to follow the proper use of an air mask when exposed to hazardous air. To ensure a proper fit, employees are prohibited from growing facial hair that could interfere with the mask seal. Plaintiff, Pastor Alexander Smith requested a religious accommodation to wear a short beard, arguing that growing the beard was an exercise of his faith and that wearing the mask was not part of his technician role in the department. This request was denied, citing safety concerns, prompting Smith to pursue legal action, alleging First Amendment, Equal Protection, and Title VII violations. However, the District Court of New Jersey ruled in favor of the fire department.
Together, the Harvard Religious Freedom Clinic and First Liberty Institute are appealing his case to the Third Circuit, with oral argument on October 30. Join Kayla Toney, who is arguing the case, and Katie Mahoney, Clinical Instructional Fellow at the Harvard Religious Freedom Clinic, as they break down the argument.
Featuring:

Kayla Toney, Associate Counsel, First Liberty Institute
(Moderator) Kathryn Mahoney, Clinical Instructional Fellow, Religious Freedom Clinic, Harvard Law School

E.M.D. Sales, Inc. v. Carrera concerns what standard the court should apply in cases of exceptions to the Fair Labor Standards Act. This act governs such limitations as hours worked, overtime pay, and working conditions across the United States. Several provisions within it exempt certain industries from some requirements, and this case deals with the burden of proof on a corporation to prove that an employee should be exempt from these rules.
The plaintiffs in this case are two employees of a food distribution company, who sued for overtime benefits citing the Fair Labor Standards Act. The company argued that their positions were those of salesmen, who are normally exempted from overtime pay rules. The plaintiffs allege that making sales was a secondary part of their numerous responsibilities that were not overtime exempt. The district court agreed that E.M.D failed to prove a sales exemption, and the Fourth Circut Court of Appeals affirmed.
Currently, the case is before the Supreme Court, with oral arguments on November 5th. Join Michael O'Neill, Vice President of Legal Affairs at Landmark Legal Foundation, and Cheryl Stanton, Chief Legal and Government Affairs Officer at BrightStar Care, as they review oral arguments and discuss this case and its implications.
Featuring:

Michael J. O'Neill, Vice President of Legal Affairs, Landmark Legal Foundation
(Moderator) Cheryl M. Stanton, Chief Legal and Government Affairs Officer, BrightStar Care