FedSoc Forums

Join Stephanie Taub, Bruce Cameron, Blaine Hutchinson for discussion on Groff v. Dejoy, which was recently added to the Supreme Court docket. This case highlights questions at the intersection of religious liberty and workplace accommodation.
Gerald Groff alleges workplace discrimination by the U.S. Postal Service based on his faith under Title VII of the Civil Rights Act. His refusal to work Sunday shifts due to Sabbath observance resulted in a penalty and sparked a contentious legal debate. Register now to stay up-to-date on this important case that has the potential to shape the future of religious liberty in the workplace.

Featuring:
--Stephanie Taub, Senior Counsel, First Liberty Institute
--Bruce Cameron, Staff Attorney, National Right to Work Legal Defense Fund
--Blaine Hutchison, Staff Attorney, National Right to Work Legal Defense Fund

Domestic and international arbitration has been the subject of considerable activity before the U.S. Supreme Court over most of the last decade. The Supreme Court’s last term (2021-2022) was no exception, with the Court deciding five arbitration-related cases, with additional cases in the Court’s current term. This program concentrated on recent and currently Supreme Court pending cases concerning international and domestic arbitration, as well as hot topics before the Circuit Courts that may rise to the Court in the near future.

Featuring:
--Manuel Farach, Shareholder, Mrachek, Fitzgerald, Konopka, Thomas & Weiss, P.A.
--Joshua B. Simmons, Partner, Wiley Rein LLP
--Moderator: Harout Jack Samra, Of Counsel, DLA Piper

Social media platforms have emerged as the new “town square” and a key forum for public debate, but some have questioned whether that debate is as open and robust as it should be. On the other hand, some worry that efforts to regulate social media platforms may themselves crimp debate. At the heart of the discussion is Section 230 of the Communications Decency Act. A panel of experts discussed what Section 230 permits and doesn’t permit—a question now before a number of courts, including the U.S. Supreme Court in Gonzalez v. Google.

Featuring:
--Ashkhen Kazaryan, Senior Fellow, Free Speech & Peace, Stand Together
--Randolph May, President, The Free State Foundation
--Joel Thayer, President, Digital Progress Institute
--Moderator: Boyd Garriott, Associate, Wiley Rein LLP

In an abrupt shift away from decades of tradition, Ukraine’s current National Bar arose from the adoption of a new model in 2013. The “Law On the Bar and Practice of Law” emerged amid recurring east-west tensions and pressures for domestic reform. This legislation produced an all-Ukrainian, non-governmental, non-profit organization that promotes adjudicatory reform. It has been recognized by the International Bar Association and the European Council of Bars and Law Societies.

In this podcast, Dr. Valentyn Gvozdiy, Vice President of the Ukrainian National Bar Association has a conversation led by George Bogden regarding the origin of this independent body.

Featuring:
--Dr. Valentyn Gvozdiy, Vice President, Ukrainian National Bar Association
--Moderator: Dr. George Bogden, George F. Kennan Fellow, Kennan Institute, and Olin Fellow, Columbia Law School.

The federal Clean Water Act regulates discharges to “navigable waters,” which the Act defines as “waters of the United States, including the territorial seas.” For decades the Environmental Protection Agency interpreted “waters of the US” very broadly through regulations, but in the past 20 years the agency lost two Supreme Court cases that have required amendments to the regulations. With a third significant decision pending from the Court in Sackett v. EPA, the agency just released the fourth major revision to the regulations defining “navigable waters” in the last eight years. This panel discussed what is old and what is new in the Biden Administration’s bid to finally capture what “waters of the US” means, and what impact the Sackett decision may have when it comes down.

Featuring:
--Kevin Minoli, Partner, Alston & Bird
--[Moderator] Tony Francois, Partner, Briscoe Ivester & Bazel

Cy pres is the practice of awarding class-action settlement funds to third-party organizations when distribution of settlement funds directly to class members is considered impractical. Champions of cy pres awards – which can amount to tens of millions of dollars – claim that the practice directly aids the causes in question. They also note its convenience and the importance of deterrence. Cy pres critics contend that such awards lead to conflicts of interest, the failure of class attorneys to prioritize class recovery, and First Amendment concerns over the compelled support of political beneficiaries.
By a 6-5 vote, the Eighth Circuit recently declined en banc review of an opinion affirming approval of a Monsanto settlement that paid $16 million to cy pres while leaving 98% of the class uncompensated. The Second Circuit affirmed approval of a settlement with Navient that paid the class of student debtors nothing with all settlement proceeds going to a few nonprofits affiliated with the teachers' union funding the class action. Both courts rejected objectors' First Amendment and Rule 23 arguments, and both cases are now the subject of cert petitions.
Ted Frank, who argued Frank v. Gaos and is counsel of record in St. John v. Jones and Yeatman v. Hyland, and Brian Fitzpatrick, author of The Conservative Case for Class Actions, will debate the pros, cons, and legality of cy pres and discuss possible Supreme Court review.

Featuring:
--Theodore "Ted" Frank, Director of Litigation & Senior Attorney, Hamilton Lincoln Law Institute
--Brian T. Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt University Law School

In 2017, ATF agents placed a surveillance camera on a pole across the street from Daphne Moore’s home in Massachusetts. They suspected Moore’s daughter of dealing drugs and guns.
They watched the house for eight months until they obtained enough evidence to get a warrant. The warrant led to a prosecution. Moore and her daughter moved to suppress the evidence. The district court granted this motion but the First Circuit later reversed.
Now, Moore and her daughter are asking the Supreme Court to decide “[w]hether long-term police use of a surveillance camera targeted at a person’s home and curtilage is a Fourth Amendment search.” A nearly identical certiorari petition arose from the Seventh Circuit a year ago but was denied. The Federalist Society covered that petition on a previous teleforum featuring a debate about whether the word “search” in the Fourth Amendment should be interpreted in accord with the reasonable-expectation-of-privacy test or in accord with the word’s plain meaning.
In this program, Institute for Justice Senior Attorney, Robert Frommer, provides a litigation update on this interesting Fourth Amendment question and the petition before the Court. The Institute for Justice filed an amicus brief urging the court to grant the petition for certiorari.

Featuring:
--Robert Frommer, Senior Attorney, Institute for Justice
--Moderator: Adam Griffin, Law Clerk, US District Courts

On January 17, 2023, the US Supreme Court heard oral argument in Turkiye Halk Bankasi A.S. v. United States.

Turkiye Halk Bankasi A.S. (“Halkbank”) was indicted by a grand jury in 2019, and charged with involvement in a scheme to launder billions of dollars worth of proceeds from Iranian oil and natural gas, which was in violation of U.S. sanctions against Iran at the time.

Halkbank, is majority-owned by the government of Turkey and moved to dismiss this indictment, arguing that the court lacked jurisdiction. Halkbank contended that the Foreign Sovereign Immunities Act (FSIA) and the fact that the government of Turkey had a majority of its ownership made it immune to criminal prosecution in U.S. federal court. In relying on FSIA, Halkbank asserted that exceptions in FSIA apply only to civil cases, and that even if such exceptions applied in criminal cases, Halkbank Would still be immune under common law standards.
The U.S. District Court rejected the argument put forward by Halkbank, and the Second Circuit affirmed. This Supreme Court granted certiorari on the question of whether US district courts may exercise subject matter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. § 3231 and in light of FSIA.

This program, held on January 18, 2023 broke down and analyzed the oral argument.

Featuring:
--Mike Hurst, Partner, Phelps Dunbar LLP

The U.S. Supreme Court appears ready to clarify when and under what circumstances federal labor law preempts state tort claims for strike-related misconduct. Next week, it will hear oral arguments in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local No. 174, a case involving the intentional destruction of an employer’s property. The employer, Glacier Northwest, manufactures ready-mix concrete. Ready-mix concrete hardens quickly and must be poured on the same day it’s mixed. In August 2017, a union representing Glacier’s employees called a sudden strike. The union allegedly timed the strike so that concrete would be left to harden in Glacier’s trucks. Predictably, the concrete was ruined, and Glacier sued the union for damages. But state courts rejected the suit. They held that the suit was preempted by the National Labor Relations Act (NLRA) because (a) the union’s conduct was arguably protected by federal law, and (b) the conduct fell outside an existing exception for intentional-tort claims because it involved no violence or “outrageous conduct.”On January 10, the Supreme Court will hear arguments on both of those conclusions. The central issue for the Court is whether the NLRA preempts intentional tort claims except when they’re accompanied by violence or outrageous conduct. The union argues that the state courts got it right: violence or outrageous conduct is necessary. Glacier, on the other hand, argues that violence or outrageous conduct has never been required. In fact, the Supreme Court itself has long recognized that intentional property destruction is unprotected and falls outside the NLRA’s preemptive reach.Regardless of who wins that argument, the resulting decision will likely clarify the scope of NLRA preemption. And potentially, it will offer guidance on the bounds of acceptable strike-related conduct.Join Alex MacDonald the afternoon of the oral arguments to stay informed on one of the most important cases currently before the Supreme Court. The webinar will be held on January 10 at 4:00 PM ET. Sign up today to reserve your spot.

Featuring:
--Alex MacDonald, Director, Future of Work and Labor Law, Instacart

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

• In re Grand Jury (Jan. 9) - Professional Responsibility; whether a communication involving both legal and non-legal advice is protected by attorney client privilege when obtaining or providing legal advice was one of the purposes behind the communication.
• The Ohio Adjutant General’s Department v. Federal Labor Relations Authority (Jan. 9) - Labor Law; whether the Civil Service Reform Act of 1978, which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies only, empower it to regulate the labor practices of state militias.
• Glacier Northwest, Inc. v. International Brotherhood of Teamsters (Jan. 10) - Labor Law; Whether the National Labor Relations Act impliedly preempts a state tort claim against a union for intentionally destroying an employer's property in the course of a labor dispute.
• Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc. (Jan. 11) - Federalism; whether the Puerto Rico Oversight, Management, and Economic Stability Act’s general grant of jurisdiction to the federal courts over claims against the Financial Oversight and Management Board for Puerto Rico and claims otherwise arising under PROMESA abrogate the Board’s sovereign immunity with respect to all federal and territorial claims.
• Santos-Zacaria v. Garland (Jan. 17) - Immigration; whether the court of appeals correctly determined that 8 U.S.C. 1252(d)(1) prevented the court from reviewing petitioner's claim that the Board of Immigration Appeals engaged in impermissible factfinding because petitioner had not exhausted that claim through a motion to reconsider.

Featuring:
--William Hodes, Professor Emeritus of Law, Indiana University; Co-Author, The Law of Lawyering
--Tessa E. Shurr, Litigation Associate, The Fairness Center
--Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
--Moderator: Anna St. John, President and General Counsel, Hamilton Lincoln Law Institute