Federalist Society Practice Groups Podcasts

On June 1, Arizona Governor Doug Ducey signed legislation prohibiting local and municipal governments from banning Internet-based “sharing economy” rental services like Airbnb and VRBO, which connect travelers with short-term vacation rentals. Property rights advocates have applauded the legislation, claiming that cities across the country have been banning private short-term rentals without legitimate justification, turning responsible property owners into outlaws simply because they allow guests to stay in their homes. Opponents assert that allowing commercial sharing-economy hosts to operate what they characterize as “illegal hotels” is unfair to conventional hotel operators who are forced to compete on an uneven playing field, as well as to property owners who may suddenly find their buildings and neighborhoods filled with busy rental properties. Our experts discussed the legislation and broader issues relating to property rights and the sharing economy. -- Featuring: Grady Gammage, Jr., Founding Member, Gammage & Burnham PLC and Christina Sandefur, Executive Vice President, Goldwater Institute.

The 2011 America Invents Act created provisions for Inter Partes Review (“IPR”) and Post Grant Review (“PGR”) of patents. According to PTO statistics, to date, nearly 50,000 patent claims have been challenged under IPR, and nearly 11,000 (22.4%) of those claims have been invalidated. On June 20, 2016, in Cuozzo Speed Technologies v. Lee, the Supreme Court upheld the Patent Trial and Appeal Board's (PTAB) interpretation of two key elements of IPR. The Court held that (1) decisions to institute IPR proceedings are non-appealable, and (2) the PTO has the authority to determine claim meaning and validity under its “broadest reasonable construction” standard. -- Important outstanding questions about the constitutionality of IPR and PGR remain, however. Specifically, once the Patent and Trademark Office has granted a patent, does a decision made by an administrative judge within the executive branch to invalidate the patent under IPR/PGR amount to a taking under the 5th Amendment of the U.S. Constitution? Moreover, does such a procedure by which issued patents are reviewed for validity by non-Article III judges raise separation of powers issues? -- Professor Greg Dolin participated in the Teleforum to elucidate the argument that he and Irina Manta make in their recent article, Taking Patents, that PGR and IPR decisions invalidating patents do indeed amount to takings under the 5th Amendment. Professor Camilla Hrdy and Yale Information Society Law Project Fellow Ben Picozzi believe that PTAB decisions invalidating patents under IPR and PGR do not raise takings problems. These patent experts also discussed separation of powers issues related to IPR and PGR. -- Featuring: Prof. Gregory Dolin, Co-director of the Center for Medicine and Law, University of Baltimore School of Law; Prof. Camilla Hrdy, Center for Technology, Innovation & Competition Fellow, University of Pennsylvania Law School; Prof. David S. Olson, Associate Professor of Law, Boston College Law School; and Mr. Ben Picozzi, Student Fellow, Information Society Project, Yale Law School.

The Federalist Society's Teleforum series, Legal Classics Revisited, will consider Professor Alexander Bickel's 1962 book, The Least Dangerous Branch. In a life cut short just before his 50th birthday, Professor Bickel contributed to our understanding of American constitutional law. Among his more provocative concepts was the "counter-majoritarian difficulty." It is not unique to observe that in a nation governed by elected representatives, an unelected Federal judiciary with lifetime tenure represents an anomaly. Alexander Hamilton penned Federalist No. 78 to explain and defend the idea. Professor Bickel takes Hamilton's idea and his title and spends his book exploring the questions: How can an unelected branch of government be a co-equal branch of government? How can society enjoy the benefits of an impartial judiciary without seismic jolting along the fault line between majoritarian and counter-majoritarian institutions? Professor Bickel's questions are still extremely relevant today. -- Featuring: Dean Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine; James A. Haynes, Attorney and Alternate Judge, U.S. Dept of Labor, Employees Compensation Appeals Board; and Prof. Ronald Rotunda, Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law.

After a bailout that arguably helped keep them afloat, the United States government has effectively nationalized two of the nation's largest financial institutions, Fannie Mae and Freddie Mac. Attorney David Thompson, managing partner of Cooper and Kirk, surveyed the legal landscape, which includes numerous suits across the United States advancing different challenges to the government's actions. -- Featuring: David H. Thompson, Managing Partner, Cooper & Kirk PLLC

United States foreign policy regarding terrorism, China, Iran, North Korea, Russia, and international trade are at the center of the election debate this year. Professor Henry Nau, the author of Conservative Internationalism: Armed Diplomacy Under Jefferson, Polk, Truman, and Reagan, has offered a framework for thinking about these geopolitical challenges. Avoiding the twin perils of overstretch and retrenchment, Professor Nau believes that the combination of force, diplomacy, and compromise used by these four presidents is the surest path to securing America’s interests while also promoting freedom. During this Teleforum, Professor Nau discussed his book, this year’s election, and how foreign policymakers should be thinking about America’s role in the world. -- Featuring: Professor Henry R. Nau, Professor of Political Science and International Affairs, Elliott School of International Affairs, The George Washington University and Matthew R.A. Heiman, Vice President, Chief Compliance & Audit Officer, Tyco International.

In this teleforum, FCC Commissioner Ajit Pai talked about the FCC’s proposed rulemaking to transform the pay television industry and competition for the television set-top boxes sitting in millions of homes across the country. The proposed rule seeks to unbundle the sale of programming from the sale of set-top boxes. The FCC wants third party technology companies to “build devices or software solutions that can navigate the universe of multichannel video programming with a competitive user interface.” The proposal has sparked tremendous debate among pay-television providers, technology companies, state and federal lawmakers, the Administration, and others. Advocates for the proposal think it could spur competition and unlock value for consumers with better and cheaper solutions for accessing video programming. Others believe the Commission’s proposal interferes with free market forces, creates more problems than it solves, and could compromise consumer privacy. -- What is the FCC’s proposal? What are the implications for consumer privacy, advertising, and free market competition? Is a compromise possible? Commissioner Pai will explore these and other issues in this important teleforum, explain his dissent to the proposal, and offer us his vision for moving forward. -- Featuring: Hon. Ajit V. Pai, Federal Communications Commission and Interviewer: Alexander P. Okuliar, Partner, Orrick, Herrington & Sutcliffe LLP.

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 July 1, 1991, President George H. W. Bush nominated Clarence Thomas for the Supreme Court of the United States. In anticipation of the 25th anniversary of the nomination, the Federalist Society hosted a panel of legal experts, including a number of Justice Thomas' former law clerks, to offer their personal remembrances and assessments of the Justice's contributions to the law and the Court. -- Featuring: Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates; Hon. Gregory G. Katsas, Partner, Jones Day (Clerked 1991-1992); Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network (Clerked 2007-2008); and Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California Berkeley School of Law (Clerked 1994-1995).

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 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 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 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.