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On Thursday, March 25, 2021, the Supreme Court issued its decision in Ford Motor Company v. Montana Eighth Judicial Dist. Court and the consolidated case of Ford Motor Company v. Bandemer. The case turned on specific personal jurisdiction, the type of contacts required by the Fourteenth Amendment to satisfy Due Process, and the Court’s precedent in International Shoe Co. v. Washington, which sets the standards required for an out-of-state defendant to be constitutionally called into a foreign state court.

In this case, two plaintiffs sued Ford alleging product liability causes of action resulting from death and serious injury that occurred during accidents allegedly caused by product defects. Markkaya Gullett died and Adam Bandamer was seriously injured. The pair of wrongful death and serious bodily injury product liability claims were brought separately in the states where the death and the injury respectively took place: Montana and Minnesota.

Ford Motor Co., as an out of state defendant incorporated in Delaware and headquartered in Michigan, argued in both cases that insufficient contacts connected Ford to the two forum states so neither the Montana nor the Michigan state court could constitutionally exercise specific personal jurisdiction over Ford. Both state court cases were heard by their state Supreme Courts and both times, the Supreme Courts ruled against Ford holding Ford was properly subject to personal jurisdiction in their state judicial system.

Ford appealed both state Supreme Court decisions on the constitutional Due Process question. In an 8-0 decision, the Supreme Court ruled against Ford holding that Ford’s contacts with both forum states were sufficiently extensive and connected to the subject matter of each suit that an exercise of personal jurisdiction could satisfy Due Process and was reasonable and fair in line with International Shoe.

Featuring:
-- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
-- Jaime A. Santos, Partner, Goodwin Procter LLP

Recent cyber attacks by the Russian and Chinese governments involving SolarWinds and Microsoft exposed cyber-related vulnerabilities in the supply chains of many large and small companies that rely on SolarWinds and Microsoft for their internal security and IT services, which also experienced security breaches as a result of these attacks. Two former DOJ National Security officials from the Obama and Trump administrations will discuss the impact of these attacks, possible criminal and non-criminal responses, and pros and cons of each approach.

Featuring:
-- Kellen Dwyer, Adjunct Professor of Law, Antonin Scalia Law School, Former Deputy Assistant Attorney General, National Security Division
-- Alex Iftimie, Partner and Co-Chair, Global Risk & Crisis Management Practice, Morrison & Foerster LLP, former Deputy Chief of Staff and Counsel to the Assistant Attorney General, National Security Division
-- Moderator: Brian Lichter, Senior Director - Legal, Global Investigations & Cybersecurity Counsel, Cognizant Technology Solutions

In Brownback v. King, the Court addressed the Federal Tort Claims Act, (FTCA) which waives Federal sovereign immunity to allow plaintiffs to sue the United States for certain torts committed by Federal employees. The FTCA includes a judgment bar which precludes a plaintiff from suing a federal employee on a cause of action arising from the same subject matter as his FTCA claim.

Following a violent encounter with two undercover FBI agents, King sued alleging an FTCA cause of action and an implied Bivens claim. The District Court dismissed both claims. Then the Sixth Circuit reversed, finding the District Court’s dismissal of King’s FTCA claims did not invoke the FTCA judgment bar because it had not reached the merits so King’s Bivens claim should be able to go forward.

In a 9-0 opinion written by Justice Thomas, the Court reversed the Sixth Circuit holding the District Court’s decision reached the merits and implicated the FTCA judgment bar.

Featuring:
-- Roman Martinez, Partner, Latham & Watkins LLP
-- Patrick Jaicomo, Attorney, Institute for Justice

Jack Phillips, of Masterpiece Cakeshop fame, is back in court for the third time since the Supreme Court’s 2017 decision. Phillips has most recently been sued in Colorado state court by Autumn Scardina, a transgender attorney who requested Phillips create a transgender transition cake. When Phillips declined, Scardina filed a complaint with the Colorado Civil Rights Commission. After being sued in Federal Court, Scardina dropped the CRC complaint then sued Phillips in state court, alleging discrimination and false advertising under Colorado state law. The false advertising claim was dismissed; trial on the remaining discrimination claim began on March 22, 2021 and a decision is expected soon.
Joining us to discuss the complicated litigation is Mark Trammell, General Counsel, Center for American Liberty.

Featuring:
Mark Trammell, General Counsel, Center for American Liberty

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

On March 31, 2021, the Supreme Court hears oral arguments in the case of NCAA v. Alston. This case addresses a Ninth Circuit decision holding that the National Collegiate Athletic Association eligibility rules regarding compensation of student-athletes violate federal antitrust law. The Court is expected to review the decision according to circuit splits and general antitrust principles.

Joshua Wright, a former commissioner at the Federal Trade Commission, joins us to discuss the case, oral arguments, and implications.

Featuring:
-- Hon. Joshua D. Wright, University Professor and Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University

On March 29, 2021, the Supreme Court will hear oral argument in the case of Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System. The case turns on class action issues and the 1988 Supreme Court case Basic Inc. v. Levinson. In Goldman Sachs, the Court will address whether a class action defendant in a case alleging securities fraud may rebut a presumption of class-wide reliance on an alleged misstatement by pointing to the generic nature of the statement and if so, whether that defendant ultimately bears the burden of production or the burden of persuasion.

Featuring:
Ted Frank, Director, Center for Class Action Fairness, Hamilton Lincoln Law Institute

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

On March 30, 2021, the Supreme Court will hear oral argument in the case of TransUnion LLC v. Ramirez. In this case, the Court will address the type of injury required by Rule 23 of the Federal Rules of Civil Procedure and Article III of the U.S. Constitution for a class of plaintiffs to sue where the injury alleged by the class representative is different (and arguably greater) than the injury alleged by the remaining class members.

Featuring:
-- Ted Frank, Director, Center for Class Action Fairness, Hamilton Lincoln Law Institute

In Our Lady of Guadalupe v. Morrissey-Berru (2020), the Supreme Court expanded on the ministerial exception doctrine it outlined in an earlier case, Hosanna-Tabor v. EEOC (2012). The doctrine holds that federal nondiscrimination laws do not apply to religious organizations in their decisions to hire and fire their “ministers.” It is an increasingly relevant rule in First Amendment jurisprudence, one that deserves careful attention and understanding, especially as there are many outstanding questions left by Our Lady that are already being litigated. Joining us to explain the doctrine, and discuss its history and future, is Jones Day attorney Victoria Dorfman, who represented a distinguished group of law professors in an amicus brief in support of Our Lady of Guadalupe School.

Featuring:
-- Victoria Dorfman, Partner, Jones Day

On Thursday, March 25, the Supreme Court issued its decision in Torres v. Madrid. The case came before the court on a section 1983 claim filed by Roxanne Torres against two New Mexico police officers who were attempting to execute a warrant for her arrest. During the attempted arrest, Torres fled from the officers, who fired thirteen times after her fleeing car. Torres was hit twice and argued in her 1983 claim that those shots were an unreasonable seizure which violated her Fourth Amendment rights. The officers argued no seizure took place because Torres did not submit to the exerted force so there could be no Fourth Amendment claim.

In a 5-3 decision, over the dissent of Justices Gorsuch, Thomas, and Alito, the Supreme Court sided with Torres finding that a seizure for purposes of the Fourth Amendment does take place where a police officer intentionally exerts force upon the person of another even where that person does not submit to the force exerted and even where the force is exerted from a distance.

Featuring:
Kent Scheidegger, Legal Director and General Counsel, Criminal Justice Legal Foundation

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

In Caniglia v. Strom, the U.S. Supreme Court will decide whether the community-caretaking exception to the Fourth Amendment’s warrant requirement extends to the home. The general rule under the Fourth Amendment is that before police perform a search or seizure they must obtain a warrant. The community-caretaking exception, by contrast, allows police to search and seize without a warrant when engaged in community-caretaking activities that are entirely unrelated to the enforcement of criminal statutes.
The Supreme Court first created the community-caretaking exception in a case called Cady v. Dombrowski, which involved a crashed car that police towed to a private garage and then searched without first obtaining a warrant. The Court’s decision upholding the officers’ actions noted the differences between homes and vehicles, including that car accidents on public thoroughfares are a “nuisance” requiring officers’ immediate attention.
The First Circuit in Caniglia extended the community-caretaking exception to the home. Edward and Kim Caniglia, a married couple, had a disagreement one night in their Rhode Island abode. After Mr. Caniglia retrieved his unloaded handgun and asked “why don’t you just shoot me and get me out of my misery?” Mrs. Caniglia left and spent the night in a motel.
The next morning, Mrs. Caniglia had the police escort her home. The police believed Mr. Caniglia could be a threat to himself, so they wanted to take him to a hospital for a psychiatric evaluation. Mr. Caniglia agreed to go based on the officers’ promise that they would not take his handguns while he was gone. But once Mr. Caniglia was admitted to the hospital, the officers entered the home without a warrant and seized his guns, claiming the community-caretaking exception justified their actions. And the First Circuit agreed.
Now, the Supreme Court is poised to address, for the first time, whether this community-caretaking exception to the warrant requirement can be applied to searches and seizures within the home. The Supreme Court accepted the case on November 20, 2020 and will hear oral arguments on March 24, 2021.Featuring:
Robert Frommer, Senior Attorney, Institute for Justice
Matt Cavedon, Assistant Public Defender, Northeastern Judicial Circuit

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