POPULARITY
18 episodes with washington legal foundation
8 episodes with washington legal foundation
9 episodes with washington legal foundation
2 episodes with washington legal foundation
On October 3, 2023, the U.S. Supreme Court held oral argument in CFSA v. CFPB, a case with profound potential implications for the future of the CFPB. The Court will rule on whether the CFPB's funding mechanism violates the U.S. Constitution's Appropriations Clause and, if so, what the appropriate remedy should be. Our special guests are six renowned attorneys who filed amicus briefs in the case: Michael Williams, Principal Deputy Solicitor General, Office of the West Virginia Attorney General; Adam Levitin, Professor, Georgetown University of Law Center; Scott Nelson, Public Citizen Litigation Group; Jeffrey Naimon, Orrick, Herrington & Sutcliffe LLP; Joshua Katz, Research Fellow, Cato Institute; and John Masslon, Counsel, Washington Legal Foundation. This two-part episode repurposes our widely-attended and highly interactive webinar held on October 17. In Part II, each of our guests offers his predictions for how the Court is likely to rule in CFSA v. CFPB. We then discuss each party's position regarding what remedy the Court should impose if it rules that that the CFPB's funding mechanism is unconstitutional, including whether the relevant provisions of the Dodd-Frank Act are severable and how a ruling against the CFPB should impact existing CFPB regulations. We conclude with a discussion of the kinds of non-constitutional legal challenges the CFPB is currently facing or is likely to face in the future, including the potential impact of a Supreme Court decision overruling its 1984 Chevron decision dealing with judicial deference to federal agency rules. Alan Kaplinsky, Senior Counsel in Ballard Spahr's Consumer Financial Services Group, moderates the discussion.
On October 3, 2023, the U.S. Supreme Court held oral argument in CFSA v. CFPB, a case with profound potential implications for the future of the CFPB. The Court will rule on whether the CFPB's funding mechanism violates the U.S. Constitution's Appropriations Clause and, if so, what the appropriate remedy should be. Our special guests are six renowned attorneys who filed amicus briefs in the case: Michael Williams, Principal Deputy Solicitor General, Office of the West Virginia Attorney General; Adam Levitin, Professor, Georgetown University of Law Center; Scott Nelson, Public Citizen Litigation Group; Jeffrey Naimon, Orrick, Herrington & Sutcliffe LLP; Joshua Katz, Research Fellow, Cato Institute; and John Masslon, Counsel, Washington Legal Foundation. This two-part episode repurposes our widely-attended and highly interactive webinar held on October 17. In Part I, we first discuss some of the key questions asked by each of the Justices that could be indicative of how he or she may vote on the case and summarize the positions of each of the parties. We then discuss the major arguments made by each of the parties in support of their positions and examine the strength of those arguments. Alan Kaplinsky, Senior Counsel in Ballard Spahr's Consumer Financial Services Group, moderates the discussion.
Regulatory modernization has been a topic of nationwide interest in recent months. With its recently revised Circular A-4, the federal Office of Information and Regulatory Affairs has embraced an approach that could potentially lead to a massive expansion in the regulatory state. At the same time, the Commonwealth of Virginia has been pursuing a very different approach. Governor Glenn Youngkin issued an executive order, EO 19, which strives to reduce regulatory burdens by 25% while promoting more transparency in the process and better regulatory analysis.This panel, which includes the Director and Deputy Director of Virginia's Office of Regulatory Management as well as leading scholars in the regulatory space, will consider the reforms that Virginia is pursuing and examine whether and how they might work in other states and at the federal level. They will consider the challenges and opportunities associated with regulatory economic analysis and a regulatory budget, look at how the Virginia reforms have fared over the last year, and explore what it might mean to implement similar reforms in other jurisdictions.Additional Reading:Reeve T. Bull, Virginia's Model: The Commonwealth Leads the Way on State Regulatory Modernization, Washington Legal Foundation, July 13, 2023, available at: https://www.wlf.org/2023/07/13/publishing/virginias-model-the-commonwealth-leads-the-way-on-state-regulatory-modernization/*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
On November 8, 2022, the U.S. Supreme Court heard oral argument in Mallory v. Norfolk Southern Railway. Petitioner Robert Mallory, a Virginia resident, sued Virginia-based Norfolk Southern in sued in the Court of Common Pleas, the court of general jurisdiction in Pennsylvania, claiming that exposure to carcinogens while working for the company caused him to develop colon cancer. According to his complaint, Mallory was exposed to harmful carcinogens while employed by Defendant in Ohio and Virginia between 1988 through 2005. He did not allege that he suffered any harmful occupational exposures in Pennsylvania but sued in Pennsylvania court on a theory that the court could exercise jurisdiction over the Virginia company because it had registered to do business in Pennsylvania.Under Pennsylvania law, a foreign corporation “may not do business in this Commonwealth until it registers” with the Department of State of the Commonwealth. State law further establishes that registration constitutes a sufficient basis for Pennsylvania courts to exercise general personal jurisdiction over that foreign corporation. Norfolk Southern Railway objected to the exercise of personal jurisdiction, arguing that the exercise violated the Due Process Clause of the Fourteenth Amendment. The trial court agreed and held Pennsylvania's statutory scheme unconstitutional. The Pennsylvania Supreme Court affirmed.The Supreme Court is to decide if a state registration statute for out-of-state corporations that purports to confer general personal jurisdiction over the registrant violates the Due Process Clause of the Fourteenth Amendment.Featuring: --John Masslon, Senior Litigation Counsel, Washington Legal Foundation.Associated Blog Post: Mallory v. Norfolk Southern: Oral Argument Preview
QUESTION PRESENTED: Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Court's decisions is now a dead letter; and whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim under Pike v. Bruce Church, Inc. Date Proceedings and Orders (key to color coding)Sep 27 2021 | Petition for a writ of certiorari filed. (Response due October 29, 2021)Oct 11 2021 | Waiver of right of respondents Karen Ross, in her official capacity as Secretary of the California Department of Food and Agriculture, et al. to respond filed.Oct 11 2021 | Waiver of right of respondents Humane Society of the United States, et al. to respond filed.Oct 12 2021 | Blanket Consent filed by Petitioner, National Pork Producers Council, et al.Oct 13 2021 | DISTRIBUTED for Conference of 10/29/2021.Oct 13 2021 | Waiver of National Pork Producers Council, et al. of right to respond not accepted for filing. (October 19, 2021)Oct 19 2021 | Response Requested. (Due November 18, 2021)Oct 29 2021 | Brief amicus curiae of Canadian Pork Council filed.Nov 01 2021 | Motion to extend the time to file a response from November 18, 2021 to December 20, 2021, submitted to The Clerk.Nov 01 2021 | Response to motion for an extension of time from petitioner National Pork Producers Council, et al. filed.Nov 02 2021 | Motion to extend the time to file a response is granted in part and the time is extended to and including December 8, 2021, for all respondents.Nov 10 2021 | Brief amici curiae of Indiana, et al. filed.Nov 12 2021 | Brief amicus curiae of Cato Institute filed.Nov 18 2021 | Brief amici curiae of North Carolina Chamber Legal Institute, et al. filed.Nov 18 2021 | Brief amici curiae of National Association of Manufacturers, et al. filed.Nov 18 2021 | Brief amici curiae of Iowa Pork Producers Association, et al. filed.Dec 08 2021 | Brief of respondents Karen Ross, in her official capacity as Secretary of the California Department of Food and Agriculture, et al. in opposition filed.Dec 08 2021 | Brief of respondents Humane Society of the United States, et al. in opposition filed.Dec 21 2021 | Reply of petitioner National Pork Producers Council, et al. filed. (Distributed)Dec 22 2021 | DISTRIBUTED for Conference of 1/7/2022.Jan 10 2022 | DISTRIBUTED for Conference of 1/14/2022.Jan 18 2022 | DISTRIBUTED for Conference of 1/21/2022.Feb 11 2022 | DISTRIBUTED for Conference of 2/18/2022.Feb 22 2022 | DISTRIBUTED for Conference of 2/25/2022.Feb 28 2022 | DISTRIBUTED for Conference of 3/4/2022.Mar 14 2022 | DISTRIBUTED for Conference of 3/18/2022.Mar 21 2022 | DISTRIBUTED for Conference of 3/25/2022.Mar 28 2022 | Petition GRANTED.Apr 06 2022 | Joint motion for an extension of time to file the briefs on the merits filed.Apr 22 2022 | Joint motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioners' brief on the merits is extended to and including June 10, 2022. The time to file respondents' briefs on the merits is extended to and including August 8, 2022.Apr 25 2022 | Motion to dispense with printing the joint appendix filed by petitioners National Pork Producers Council, et al.May 16 2022 | Motion to dispense with printing the joint appendix filed by petitioner GRANTED.Jun 10 2022 | Brief of petitioners National Pork Producers Council, et al. filed.Jun 14 2022 | ARGUMENT SET FOR Tuesday, October, 11, 2022.Jun 14 2022 | Brief amicus curiae of Pacific Legal Foundation filed.Jun 17 2022 | Brief amici curiae of National Association of Manufacturers, et al. filed.Jun 17 2022 | Brief amicus curiae of Protect the Harvest filed.Jun 17 2022 | Brief amicus curiae of The Buckeye Institute filed.Jun 17 2022 | Brief amici curiae of North Carolina Chamber Legal Institute, et al. filed.Jun 17 2022 | Brief amici curiae of The Retail Litigation Center, Inc., et al. filed.Jun 17 2022 | Brief amicus curiae of Professor Lea Brilmayer in support of neither party filed.Jun 17 2022 | Brief amici curiae of Canadian Pork Council, et al. filed.Jun 17 2022 | Brief amicus curiae of American Association of Swine Veterinarians filed.Jun 17 2022 | Brief amici curiae of Indiana, et al. filed.Jun 17 2022 | Brief amici curiae of Agricultural And Resource Economics Professors in support of neither party filed.Jun 17 2022 | Brief amicus curiae of Pharmaceutical Research and Manufacturers of America filed.Jun 17 2022 | Brief amici curiae of Professors Michael Knoll, et al. filed.Jun 17 2022 | Brief amicus curiae of The Chamber of Commerce of the United States of America filed.Jun 17 2022 | Brief amici curiae of Iowa Pork Producers Association, et al. filed.Jun 17 2022 | Brief amicus curiae of North American Meat Institute filed.Jun 17 2022 | Brief amicus curiae of Washington Legal Foundation filed.Jun 17 2022 | Brief amicus curiae of Association for Accessible Medicines filed.Jun 17 2022 | Brief amicus curiae of United States filed.Jun 17 2022 | Brief amicus curiae of National Taxpayers Union Foundation filed.Jun 17 2022 | Brief amici curiae of Association Des Éleveurs De Canards Et D'oies Du Québec, et al. filed.Jun 22 2022 | Record requested from the 9th Circuit.Jun 23 2022 | The record from the U.S.C.A. 9th Circuit is electronic and located on Pacer.Jul 21 2022 | CIRCULATEDAug 04 2022 | Brief amicus curiae of Dr. Leon Barringer filed. (Distributed)Aug 08 2022 | Brief of State Respondents filed. (Distributed)Aug 10 2022 | Motion for leave to file respondents' brief on the merits out of time filed by respondents The Humane Society of the United States, et al.Aug 10 2022 | Brief of respondents The Humane Society of the United States, et al. filed (September 9, 2022). (Distributed)Aug 12 2022 | Brief amici curiae of State of Illinois, et al. filed. (Distributed)Aug 12 2022 | Brief amici curiae of The Center for a Humane Economy, et al. filed. (Distributed)Aug 15 2022 | Motion for divided argument filed by respondents The Humane Society of the United States, et al.Aug 15 2022 | Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument filed.Aug 15 2022 | Brief amici curiae of Animal Protection Organizations and Law Professors filed. (Distributed)Aug 15 2022 | Brief amici curiae of Worker Safety Advocates filed. (Distributed)Aug 15 2022 | Brief amici curiae of Donald Broom, Elena Contreras, Gwendolen Reyes-Illg, James Reynolds, and 374 Additional Animal-Welfare Scientists and Veterinarians filed. (Distributed)Aug 15 2022 | Brief amicus curiae of Animal Protection and Rescue League, Inc. filed. (Distributed)Aug 15 2022 | Brief amicus curiae of The American Society For The Prevention of Cruelty to Animals filed. (Distributed)Aug 15 2022 | Brief amici curiae of Professors Barry Friedman and Daniel T. Deacon filed. (Distributed)Aug 15 2022 | Brief amicus curiae of Trade Law Professor Mark Wu filed. (Distributed)Aug 15 2022 | Brief amici curiae of National League for Cities, et al. filed. (Distributed)Aug 15 2022 | Brief amicus curiae of United States Senator Cory Booker filed. (Distributed)Aug 15 2022 | Brief amici curiae of Jim Keen DVM PH.D, et al. filed. (Distributed)Aug 15 2022 | Brief amici curiae of O. Carter Snead, Mary Eberstadt, and Matthew Scully filed. (Distributed)Aug 15 2022 | Brief amici curiae of Economic Research Organizations filed. (Distributed)Aug 15 2022 | Brief amici curiae of American Public Health Association, et al. filed. (Distributed)Aug 15 2022 | Brief amicus curiae of Public Citizen filed. (Distributed)Aug 15 2022 | Brief amici curiae of Federalism Scholars filed. (Distributed)Aug 15 2022 | Brief amicus curiae of Perdue Premium Meat Company Inc. d/b/a Niman Ranch filed. (Distributed)Aug 15 2022 | Brief amici curiae of Global Animal Partnership and EarthClaims LLC filed. (Distributed)Aug 15 2022 | Brief amicus curiae of Physicians Committee For Responsible Medicine filed. (Distributed)Aug 15 2022 | Brief amicus curiae of Northeast Organic Dairy Producers Alliance filed. (Distributed)Aug 15 2022 | Brief amici curiae of Small and Independent Farming Businesses, et al. filed. (Distributed)Aug 15 2022 | Brief amici curiae of Historians Thomas Aiello and Joshua Specht filed. (Distributed)Aug 15 2022 | Brief amicus curiae of Association of California Egg Farmers filed. (Distributed)Aug 15 2022 | Brief amicus curiae of ButcherBox filed. (Distributed)Aug 15 2022 | Brief amici curiae of Constitutional Law Scholars filed. (Distributed)Sep 07 2022 | Reply of petitioners National Pork Producers Council, et al. filed. (Distributed)Sep 09 2022 | Motion for leave to file respondents' brief on the merits out of time GRANTED.Sep 09 2022 | Motion for divided argument filed by respondents GRANTED.Sep 09 2022 | Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument GRANTED, and the time is divided as follows: 20 minutes for petitioners, 15 minutes for the Solicitor General, 25 minutes for the state respondents, and 10 minutes for The Humane Society of the United States, et al. respondents.
QUESTION PRESENTED:Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under the California Private Attorneys General Act.Date Proceedings and OrdersMay 10 2021 | Petition for a writ of certiorari filed. (Response due June 14, 2021)May 25 2021 | Blanket Consent filed by Petitioner, Viking River Cruises, Inc.Jun 11 2021 | Brief amicus curiae of Washington Legal Foundation filed.Jun 14 2021 | Brief amicus curiae of Retail Litigation Center, Inc. filed.Jun 14 2021 | Brief amicus curiae of California New Car Dealers Association filed.Jun 14 2021 | Brief amicus curiae of The Chamber of Commerce of the United States of America filed.Jun 14 2021 | Brief amicus curiae of Restaurant Law Center filed.Jun 30 2021 | DISTRIBUTED for Conference of 9/27/2021.Jul 13 2021 | Response Requested. (Due August 12, 2021)Aug 04 2021 | Motion to extend the time to file a response from August 12, 2021 to September 10, 2021, submitted to The Clerk.Aug 05 2021 | Motion to extend the time to file a response is granted and the time is extended to and including September 10, 2021.Sep 10 2021 | Brief of respondent Angie Moriana in opposition filed.Sep 28 2021 | Reply of petitioner Viking River Cruises, Inc. filed.Nov 23 2021 | DISTRIBUTED for Conference of 12/10/2021.Dec 15 2021 | Petition GRANTED.Jan 04 2022 | Blanket Consent filed by Petitioner, Viking River Cruises, Inc.Jan 13 2022 | Blanket Consent filed by Respondent, Angie MorianaJan 28 2022 | ARGUMENT SET FOR Wednesday, March 30, 2022.Jan 31 2022 | Brief of petitioner Viking River Cruises, Inc. filed.Jan 31 2022 | Joint appendix filed.Feb 01 2022 | Record requested from the U.S. Court of Appeal of California 2nd Appellate.Feb 04 2022 | Brief amicus curiae of California New Car Dealers Association filed.Feb 04 2022 | Brief amici curiae of Washington Legal Foundation and Atlantic Legal Foundation filed. (Distributed)Feb 07 2022 | Brief amicus curiae of Employers Group filed.Feb 07 2022 | Brief amici curiae of Uber Technologies, Inc. and Postmates, LLC filed.Feb 07 2022 | Brief amici curiae of The Chamber of Commerce of the United States of America, et al. filed.Feb 07 2022 | Brief amici curiae of Retail Litigation Center, Inc. and the National Retail Federation filed.Feb 07 2022 | Brief amicus curiae of California Employment Law Council filed.Feb 07 2022 | Brief amicus curiae of Civil Justice Association of California filed.Feb 07 2022 | Brief amicus curiae of Restaurant Law Center filed.Feb 07 2022 | Brief amicus curiae of The California Business and Industrial Alliance filed. (Distributed)Feb 11 2022 | CIRCULATEDFeb 14 2022 | The record received from the Superior Court of California County of Los Angeles has been electronically filed.Mar 02 2022 | Brief of respondent Angie Moriana filed. (Distributed)Mar 08 2022 | Amicus brief of National Academy of Arbitrators not accepted for filing. (March 08, 2022 -- Corrected version to be submitted)Mar 08 2022 | Brief amicus curiae of National Academy of Arbitrators filed. (Distributed)Mar 08 2022 | Brief amicus curiae of Steve Chow filed. (Distributed)Mar 09 2022 | Brief amicus curiae of The American Federation of Labor and Congress of Industrial Organizations filed. (Distributed)Mar 09 2022 | Brief amici curiae of California Rural Legal Assistance, Inc. and California Rural Legal Assistance Foundation filed. (Distributed)Mar 09 2022 | Brief amici curiae of Civil Procedure and Arbitration Law Professors filed. (Distributed)Mar 09 2022 | Brief amici curiae of California Employment Lawyers' Association, et al. filed. (Distributed)Mar 09 2022 | Brief amicus curiae of Public Justice filed. (Distributed)Mar 09 2022 | Brief amicus curiae of Taxpayers Against Fraud Education Fund filed. (Distributed)Mar 09 2022 | Brief amicus curiae of State of California filed. (Distributed)Mar 09 2022 | Brief amicus curiae of Arbitration Scholar Imre Stephen Szalai filed. (Distributed)Mar 09 2022 | Brief amicus curiae of Tracy Chen, in Her Representative Proxy Capacity on Behalf of the State of California filed. (Distributed)Mar 09 2022 | Brief amicus curiae of American Association for Justice filed. (Distributed)Mar 18 2022 | Reply of petitioner Viking River Cruises, Inc. filed. (Distributed)★ Support this podcast on Patreon ★
QUESTION PRESENTED:Whether workers who load or unload goods from vehicles that travel in interstate commerce, but do not physically transport such goods themselves, are interstate “transportation workers” exempt from the Federal Arbitration Act.Date Proceedings and OrdersAug 27 2021 | Petition for a writ of certiorari filed. (Response due September 30, 2021)Sep 08 2021 | Motion to extend the time to file a response from September 30, 2021 to November 1, 2021, submitted to The Clerk.Sep 09 2021 | Motion to extend the time to file a response is granted and the time is extended to and including November 1, 2021.Sep 27 2021 | Brief amicus curiae of Washington Legal Foundation filed.Sep 30 2021 | Brief amicus curiae of Airlines for America filed.Nov 01 2021 | Brief of respondent Latrice Saxon in opposition filed.Nov 15 2021 | Reply of petitioner Southwest Airlines Co. filed. (Distributed)Nov 16 2021 | DISTRIBUTED for Conference of 12/3/2021.Dec 06 2021 | DISTRIBUTED for Conference of 12/10/2021.Dec 10 2021 | Petition GRANTED. Justice Barrett took no part in the consideration or decision of this petition.Jan 18 2022 | Motion to dispense with printing the joint appendix filed by petitioner Southwest Airlines Co.Jan 24 2022 | Brief of petitioner Southwest Airlines Co. filed.Jan 26 2022 | Record requested from the U.S.C.A. 7th Circuit.Jan 26 2022 | The record from the U.S.C.A. 7th Circuit is electronic and located on Pacer.Jan 28 2022 | ARGUMENT SET FOR Monday, March 28, 2022.Jan 28 2022 | Brief amicus curiae of Washington Legal Foundation filed.Jan 31 2022 | Brief amici curiae of Chamber of Commerce of the United States of America; National Association of Manufacturers filed.Jan 31 2022 | Brief amicus curiae of Lyft, Inc. filed.Jan 31 2022 | Brief amici curiae of Airlines for America filed.Jan 31 2022 | Brief amicus curiae of Uber Technologies, Inc. filed.Jan 31 2022 | Brief amicus curiae of Amazon.com, Inc. filed.Feb 11 2022 | CIRCULATEDFeb 22 2022 | Motion to dispense with printing the joint appendix filed by petitioner GRANTED. Justice Barrett took no part in the consideration or decision of this motion.Feb 22 2022 | Motion for an extension of time to file respondent's brief on the merits filed.Feb 22 2022 | Motion to extend the time to file respondent's brief on the merits is granted and the time is extended to and including February 24, 2022.Feb 24 2022 | Brief of respondent Latrice Saxon filed. (Distributed)Mar 01 2022 | Brief amicus curiae of National Employment Lawyers Association filed. (Distributed)Mar 02 2022 | Amicus brief of Historians not accepted for filing. (March 02, 2022)Mar 02 2022 | Brief amici curiae of Historians filed. (Distributed)Mar 02 2022 | Brief amicus curiae of American Federation of Labor and Congress of Industrial Organizations filed. (Distributed)Mar 02 2022 | Brief amici curiae of National Academy of Arbitrators and National Association of Railroad Referees filed (3/10/2020). (Distributed)Mar 03 2022 | Brief amicus curiae of Public Justice filed. (Distributed)Mar 03 2022 | Brief amicus curiae of American Association for Justice filed. (Distributed)Mar 03 2022 | Brief amici curiae of State of Illinois, et al. filed. (Distributed)Mar 17 2022 | Reply of petitioner Southwest Airlines Co. filed. (Distributed)Mar 28 2022 | Argued. For petitioner: Shay Dvoretzky, Washington, D. C. For respondent: Jennifer D. Bennett, San Francisco, Cal.★ Support this podcast on Patreon ★
QUESTION PRESENTED:Whether the arbitration-specific requirement that the proponent of a contractual waiver defense prove prejudice violates the Supreme Court's instruction in AT&T Mobility LLC v. Concepcion that lower courts must “place arbitration agreements on an equal footing with other contracts."Date Proceedings and OrdersAug 27 2021 | Petition for a writ of certiorari filed. (Response due October 1, 2021)Sep 29 2021 | Motion for leave to file amici brief filed by Law Professors.Oct 01 2021 | Brief of respondent Sundance, Inc. in opposition filed.Oct 15 2021 | Reply of petitioner Robyn Morgan filed.Oct 20 2021 | DISTRIBUTED for Conference of 11/5/2021.Nov 08 2021 | DISTRIBUTED for Conference of 11/12/2021.Nov 15 2021 | Motion for leave to file amici brief filed by Law Professors GRANTED.Nov 15 2021 | Petition GRANTED.Nov 30 2021 | Motion for an extension of time to file respondent's brief on the merits filed.Nov 30 2021 | Application (21A215) to extend the time to file a reply brief on the merits to March 11, 2022, submitted to Justice Kavanaugh.Dec 15 2021 | Application (21A215) granted by Justice Kavanaugh extending the time to file the reply brief on the merits until March 11, 2022.Dec 15 2021 | Motion to extend the time to file respondent's brief on the merits granted and the time is extended to and including February 4, 2022.Dec 29 2021 | Blanket Consent filed by Respondent, Sundance, Inc.Dec 30 2021 | Brief of petitioner Robyn Morgan filed.Dec 30 2021 | Joint appendix filed. (Statement of costs filed)Jan 05 2022 | Brief amicus curiae of American Association for Justice filed.Jan 06 2022 | Brief amicus curiae of The National Academy of Arbitrators filed.Jan 06 2022 | Brief amici curiae of Law Professors filed.Jan 06 2022 | Brief amici curiae of Minnesota, Maryland, et al. filed.Jan 06 2022 | Brief amicus curiae of Public Citizen filed.Jan 18 2022 | Blanket Consent filed by Petitioner, Robyn MorganJan 26 2022 | Record requested from the U.S.C.A. 8th Circuit.Jan 28 2022 | ARGUMENT SET FOR Monday, March 21, 2022.Feb 04 2022 | Brief of respondent Sundance, Inc. filed.Feb 09 2022 | Brief amicus curiae of Washington Legal Foundation filed.Feb 11 2022 | CIRCULATEDFeb 11 2022 | Brief amicus curiae of Restaurant Law Center filed. (Distributed)Feb 11 2022 | Brief amicus curiae of Chamber of Commerce of the United States of America filed. (Distributed)Mar 11 2022 | Reply of petitioner Robyn Morgan filed. (Distributed)Mar 21 2022 | Argued. For petitioner: Karla A. Gilbride, Washington, D. C. For respondent: Paul D. Clement, Washington, D. C.★ Support this podcast on Patreon ★
QUESTION PRESENTED:Whether the Supreme Court should issue a stay of OSHA's vaccine-or-testing regime for all businesses with 100 or more employees.Date Proceedings and Orders Dec 17 2021 | Application (21A244) for a stay, submitted to Justice Kavanaugh.Dec 20 2021 | Response to application (21A244) requested by Justice Kavanaugh, due by 4 p.m., Thursday, December 30, 2021.Dec 20 2021 | Motion for leave to file amicus curiae brief filed by Washington Legal Foundation.Dec 22 2021 | Application (21A244) referred to the Court.Dec 22 2021 | Consideration of the applications (21A244 and 21A247) for stay presented to Justice Kavanaugh and by him referred to the Court is deferred pending oral argument. The applications are consolidated, and a total of one hour is allotted for oral argument. The applications are set for oral argument on Friday, January 7, 2022.Dec 22 2021 | Motion for leave to file amici curiae brief filed by Former OSHA Administrators Charles Jeffress, David Michaels, and Gerard Scannell. VIDED.Dec 23 2021 | Because the Court has consolidated these applications for oral argument, future filings and activity in 21A244 and 21A247 will now be reflected on the docket of No. 21A244. Subsequent filings in No. 21A244 and/or 21A247 must therefore be submitted through the electronic filing system in No. 21A244. Any document submitted in connection with either of these applications must include on its cover the application number and caption for each application in which the filing is intended to be submitted. Where a filing is submitted in only one application, the docket entry will reflect that; a document filed in both applications will be noted as “VIDED.”Dec 23 2021 | Motion for divided argument filed by applicants. VIDED.Dec 23 2021 | Replies, if any, shall be filed by 10 a.m., Monday, January 3, 2022. VIDED.Dec 23 2021 | Motion for leave to file amicus curiae brief filed by Constitutional Accountability Center. VIDED.Dec 27 2021 | Motion for leave to file amici curiae brief filed by National Employment Lawyers Association and Jobs With Justice Educational Fund. VIDED.Dec 28 2021 | Motion for leave to file amicus curiae brief filed by Tore Says LLC. VIDED.Dec 28 2021 | Motion for leave to file amicus curiae brief filed by Liberty, Life and Law Foundation. VIDED.Dec 29 2021 | Motion for leave to file amicus curiae brief filed byDefending The Republic, Inc. VIDED.Dec 29 2021 | Motion for leave to file amicus curiae brief filed by Standard Process Inc. VIDED.Dec 30 2021 | Motion for divided argument filed by applicants GRANTED. VIDED.Dec 30 2021 | Motion for Leave to File and Brief of Amici Curiae of Members of Congress not accepted for filing. (January 03, 2022)Dec 30 2021 | Response to application from respondents Occupational Safety and Health Administration, et al. filed. VIDED.Dec 30 2021 | Motion for leave to file amici curiae brief filed by American Public Health Association, et al. VIDED.Dec 30 2021 | Motion for leave to file amici curiae brief filed by Local Unions 1249 and 97 of the International Brotherhood of Electrical Workers. VIDED.Dec 30 2021 | Response to application from respondents American Federation of Labor and Congress of Industrial Organizations filed. VIDED.Dec 30 2021 | Motion for leave to file amicus curiae brief filed by America's Frontline Doctors. VIDED.Dec 30 2021 | Motion for leave to file amicus curiae brief filed by We The Patriots USA, Inc. VIDED.Dec 30 2021 | Motion for leave to file amici curiae brief filed by American Medical Association, et al. VIDED.Dec 30 2021 | Motion for leave to file amici curiae brief filed by Center for Medical Freedom, et al. VIDED.Dec 30 2021 | Motion for leave to file amicus curiae brief filed by Advancing American Freedom. VIDED.Dec 30 2021 | Motion for leave to file amici curiae brief filed by National Disability Rights Network, et al. VIDED.Dec 30 2021 | Motion for leave to file amici curiae brief filed by Small Business Majority, et al. VIDED.Dec 30 2021 | Motion for leave to file amicus curiae brief filed by the IU Family for Choice, not Mandates, Inc. VIDED.Jan 03 2022 | Reply of applicant National Federation of Independent Business, et al. filed.Jan 03 2022 | Motion for leave to file amici curiae brief filed by Texas Values, et al. VIDED.Jan 03 2022 | Motion for leave to file amici curiae brief filed by Members of Congress. VIDED.Jan 03 2022 | Reply of Ohio, et al. in support of application submitted.Jan 05 2022 | Motion of Jason Feliciano , et al.Jan 06 2022 | Motion of Alsco, Inc. for Leave to File Brief as Amicus Curiae in Opposition to Emergency Applications for a Stay or Injunction Pending Certiorari Review; For Leave to File Without 10 Days' Notice; and For Leave to File in Paper Format of Alsco, Inc. submitted.Jan 06 2022 | Motion of 400 Physicians, Surgeons, Nurses, and Medical Professionals Opposing OSHA's Unconstitutional Overreach Leave to File Attached Brief as Amicus Curiae in Support of Applicants of 400 Physicians, Surgeons, Nurses, and Medical Professionals Opposing OSHA's Unconstitutional Overreach submitted.Jan 06 2022 | Motion for Leave to File; and Amici Brief of Two Unnamed Workers in Support of Application for Stay, Grant of Certiorari, and Reversal of Two Unnamed Workers submitted.Jan 06 2022 | Motion for Leave to File Amicus Brief and Brief of American Commitment Foundation, Inc. submitted.Jan 07 2022 | Argued. For applicants in 21A244: Scott A. Keller, Washington, D. C. For applicants in 21A247: Benjamin M. Flowers, Solicitor General, Columbus, Ohio. For respondents: Elizabeth B. Prelogar, Solicitor General, Department of Justice, Washington, D. C. VIDED.★ Support this podcast on Patreon ★
On January 7 the Supreme Court will hear oral argument in a set of cases challenging the Biden administration's Covid vaccine mandates. Under one mandate, employers with more than 100 employees must require those employees to be vaccinated, or be tested for Covid on a weekly basis. Under the other mandate, any health care facility that participates in Medicare or Medicaid must ensure that all their workers are fully vaccinated. Joining host Jeffrey Rosen are two attorneys who filed amicus briefs in these cases. John Masslon, senior litigation counsel at Washington Legal Foundation, filed an amicus brief arguing against the legality of the mandates, and Deepak Gupta, founding principal of Gupta Wessler and instructor at Harvard's Supreme Court Litigation Clinic, filed an amicus brief in support of the legality of the mandates on behalf of the American Public Health Association. The National Constitution Center relies on support from listeners like you to provide nonpartisan constitutional education to Americans of all ages. In honor of the 234th anniversary of the ratification of the U.S. Constitution, every dollar you give to support the We the People podcast campaign will be doubled with a generous 1:1 match up to a total of $234,000, made possible by the John Templeton Foundation! Visit www.constitutioncenter.org/we-the-people to donate, and thank you for your crucial support. Questions or comments about the show? Email us at podcast@constitutioncenter.org. Continue today's conversation on Facebook and Twitter using @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.
On January 7 the Supreme Court will hear oral argument in a set of cases challenging the Biden administration's Covid vaccine mandates. Under one mandate, employers with more than 100 employees must require those employees to be vaccinated, or be tested for Covid on a weekly basis. Under the other mandate, any health care facility that participates in Medicare or Medicaid must ensure that all their workers are fully vaccinated. Joining host Jeffrey Rosen are two attorneys who filed amicus briefs in these cases. John Masslon, senior litigation counsel at Washington Legal Foundation, filed an amicus brief arguing against the legality of the mandates, and Deepak Gupta, founding principal of Gupta Wessler and instructor at Harvard's Supreme Court Litigation Clinic, filed an amicus brief in support of the legality of the mandates on behalf of the American Public Health Association. The National Constitution Center relies on support from listeners like you to provide nonpartisan constitutional education to Americans of all ages. In honor of the 234th anniversary of the ratification of the U.S. Constitution, every dollar you give to support the We the People podcast campaign will be doubled with a generous 1:1 match up to a total of $234,000, made possible by the John Templeton Foundation! Visit www.constitutioncenter.org/we-the-people to donate, and thank you for your crucial support. Questions or comments about the show? Email us at podcast@constitutioncenter.org. Continue today's conversation on Facebook and Twitter using @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.
QUESTION PRESENTED:Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress.Date Proceedings and Orders (key to color coding)Aug 21 2020 | Petition for a writ of certiorari filed. (Response due September 24, 2020)Sep 24 2020 | Brief of respondent Premier Rehab Keller, P.L.L.C. in opposition filed.Oct 14 2020 | DISTRIBUTED for Conference of 10/30/2020.Oct 14 2020 | Reply of petitioner Jane Cummings filed. (Distributed)Nov 02 2020 | The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States. Justice Barrett took no part in the consideration of this petition.May 25 2021 | Brief amicus curiae of United States filed.Jun 07 2021 | Supplemental brief of respondent Premier Rehab Keller, P.L.L.C. filed. (Distributed)Jun 08 2021 | DISTRIBUTED for Conference of 6/24/2021.Jul 01 2021 | DISTRIBUTED for Conference of 7/1/2021.Jul 02 2021 | Petition GRANTED.Jul 08 2021 | Motion for an extension of time filed.Jul 12 2021 | Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including August 23, 2021. The time to file respondent's brief on the merits is extended to and including September 29, 2021.Aug 11 2021 | Motion to dispense with printing the joint appendix filed by petitioner Jane Cummings.Aug 17 2021 | Blanket Consent filed by Respondent, Premier Rehab Keller, P.L.L.C.Aug 23 2021 | Brief of petitioner Jane Cummings filed.Aug 26 2021 | Blanket Consent filed by Petitioner, Jane CummingsAug 26 2021 | Brief amicus curiae of American Association for Justice filed.Aug 30 2021 | Brief amici curiae of Disability Organizations filed.Aug 30 2021 | Brief amici curiae of NAACP Legal Defense & Educational Fund Inc., et al. filed.Aug 30 2021 | Brief amici curiae of Law Professors filed.Aug 30 2021 | Brief amicus curiae of United States filed.Sep 10 2021 | Motion to dispense with printing the joint appendix filed by petitioner GRANTED.Sep 20 2021 | SET FOR ARGUMENT on Tuesday, November 30, 2021.Sep 27 2021 | Record requested from the U.S.C.A. 5th Circuit.Sep 29 2021 | Brief of respondent Premier Rehab Keller, P.L.L.C. filed.Oct 01 2021 | Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument filed.Oct 05 2021 | The record from the U.S.C.A. 5th Circuit is electronic and located on Pacer.Oct 05 2021 | Brief amicus curiae of Washington Legal Foundation filed.Oct 06 2021 | Brief amici curiae of The States of Texas, et al. filed.Oct 06 2021 | Brief amici curiae of The National Conference of State Legislatures, et al. filed.Oct 06 2021 | Brief amici curiae of The Chamber of Commerce of the United States of America, et al. filed.Oct 08 2021 | The record received from the U.S.D.C. Northern District of Texas is electronic and has been filed electronically.Oct 18 2021 | Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument GRANTED, and the time is allotted as follows: 20 minutes for petitioner, 15 minutes for the Acting Solictor General, and 35 minutes for respondent.Oct 19 2021 | Application (21A98) to extend the time to file a reply brief on the merits from October 29, 2021 to November 2, 2021, submitted to Justice Alito.Oct 25 2021 | Application (21A98) granted by Justice Alito extending the time to file until November 2, 2021.Oct 29 2021 | CIRCULATEDNov 02 2021 | Reply of petitioner Jane Cummings filed. (Distributed)★ Support this podcast on Patreon ★
QUESTION PRESENTED:Whether the Austin city code's distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert.DateProceedings and OrdersJan 20 2021 | Petition for a writ of certiorari filed. (Response due March 1, 2021)Feb 08 2021 | Brief amici curiae of International Municipal Lawyers Association, et al. filed.Feb 25 2021 | Waiver of right of respondent Reagan National Advertising of Austin, Inc. to respond filed.Mar 01 2021 | Brief amici curiae of Chambers of Commerce, et al. filed. (Distributed)Mar 03 2021 | DISTRIBUTED for Conference of 3/19/2021.Mar 12 2021 | Response Requested. (Due April 12, 2021)Mar 17 2021 | Motion to extend the time to file a response from April 12, 2021 to May 12, 2021, submitted to The Clerk.Mar 23 2021 | Motion to extend the time to file a response is granted and the time is extended to and including May 12, 2021.May 12 2021 | Brief of respondents Reagan National Advertising of Austin, Incorporated, et al. in opposition filed.May 26 2021 | Reply of City of Austin not accepted for filing. (May 28, 2021) (Corrected version submitted)May 26 2021 | Reply of petitioner City of Austin filed.Jun 01 2021 | DISTRIBUTED for Conference of 6/17/2021.Jun 21 2021 | DISTRIBUTED for Conference of 6/24/2021.Jun 28 2021 | Petition GRANTED.Aug 03 2021 | Blanket Consent filed by Respondent, Reagan National Advertising of Austin, Inc.Aug 03 2021 | Motion for an extension of time to file the joint appendix and petitioner's brief on the merits filed.Aug 04 2021 | Letter requesting case caption correction filed by petitioner.Aug 09 2021 | Motion to extend the time to file the joint appendix and petitioner's brief on the merits is granted and the time is extended to and including August 13, 2021.Aug 13 2021 | Brief of petitioner City of Austin filed.Aug 13 2021 | Joint appendix filed. (Statement of costs filed)Aug 16 2021 | ARGUMENT SET FOR Wednesday, November 10, 2021.Aug 17 2021 | Motion for an extension of time to file respondents' brief on the merits filed.Aug 19 2021 | Brief amicus curiae of The American Planning Association in Support of Neither Party filed.Aug 20 2021 | Amicus brief of Chambers of Commerce, Business Leagues, Environmental Organizations, and On-Premise Sign Associations not accepted for filing. (August 20, 2021)Aug 20 2021 | Brief amicus curiae of United States filed.Aug 20 2021 | Brief amici curiae of Knight First Amendment Institute at Columbia University and Professor Genevieve Lakier filed.Aug 20 2021 | Brief amici curiae of The National League of Cities; The U.S. Conference of Mayors; The International City/County Management Association; The International Municipal Lawyers Association filed.Aug 20 2021 | Brief amicus curiae of International Sign Association filed.Aug 20 2021 | Brief amici curiae of Land Developers, Chambers of Commerce, and Scenic Organizations filed.Aug 20 2021 | Brief amicus curiae of Outfront Media Inc. filed.Aug 20 2021 | Brief amici curiae of State of Florida, et al., filed.Aug 20 2021 | Amicus brief of State of Florida, et al., not accepted for filing. (October 08, 2021--Duplicate submission)Aug 26 2021 | Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument filed.Aug 31 2021 | Motion to extend the time to file respondents brief on the merits granted and the time is extended to and including September 22, 2021.Sep 01 2021 | Record requested from the U.S.C.A. 5th Circuit.Sep 01 2021 | The record from the U.S.C.A. 5th Circuit is electronic and located on Pacer.Sep 21 2021 | CIRCULATEDSep 22 2021 | Letter pursuant to Rule 35.3 received.Sep 22 2021 | Brief of respondents Reagan National Advertising of Austin, LLC, et al. filed. (Distributed)Sep 27 2021 | Brief amicus curiae of Americans for Prosperity Foundation filed. (Distributed)Sep 28 2021 | Brief amicus curiae of Pacific Legal Foundation filed. (Distributed)Sep 29 2021 | Brief amicus curiae of Washington Legal Foundation filed. (Distributed)Sep 29 2021 | Brief amici curiae of Alliance Defending Freedom, et al. filed. (Distributed)Sep 29 2021 | Brief amicus curiae of Institute for Justice filed. (Distributed)Sep 29 2021 | Brief amici curiae of Out of Home Advertising Association of America, Inc., et al. filed. (Distributed)Sep 29 2021 | Brief amicus curiae of Institute for Free Speech filed. (Distributed)Sep 29 2021 | Brief amicus curiae of Cato Institute filed. (Distributed)Sep 29 2021 | Brief amicus curiae of Protect the First Foundation filed. (Distributed)Sep 29 2021 | Brief amicus curiae of Summus 2, LLC dba Summus Outdoor filed. (Distributed)Sep 29 2021 | Brief amicus curiae of Liberty Justice Center filed. (Distributed)Oct 04 2021 | Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument GRANTED.Oct 18 2021 | The time for oral argument is allotted as follows: 20 minutes for petitioner, 15 minutes for the Acting Solicitor General, and 35 minutes for respondents.Oct 22 2021 | Reply of petitioner City of Austin filed. (Distributed)Nov 10 2021 | Argued. For petitioner: Michael R. Dreeben, Washington, D. C.; and Benjamin Snyder, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: Kannon K. Shanmugam, Washington, D. C.★ Support this podcast on Patreon ★
QUESTION PRESENTED:Whether either Article III or Federal Rule of Civil Procedure 23 permits a damages class action when the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.DateProceedings and Orders (key to color coding)Sep 02 2020 | Petition for a writ of certiorari filed. (Response due October 8, 2020)Sep 30 2020 | Motion to extend the time to file a response from October 8, 2020 to November 6, 2020, submitted to The Clerk.Oct 02 2020 | Motion to extend the time to file a response is granted and the time is extended to and including November 6, 2020.Oct 08 2020 | Brief amicus curiae of Consumer Data Industry Association filed.Oct 08 2020 | Brief amicus curiae of The Chamber of Commerce of the United States of America filed.Nov 06 2020 | Brief of respondent Sergio L. Ramirez in opposition filed.Nov 24 2020 | DISTRIBUTED for Conference of 12/11/2020.Nov 24 2020 | Reply of petitioner TransUnion LLC filed. (Distributed)Dec 16 2020 | Petition GRANTED limited to Question 1 presented by the petition.Dec 23 2020 | Blanket Consent filed by Respondent, Sergio L. RamirezDec 23 2020 | Blanket Consent filed by Petitioner, TransUnion LLCFeb 01 2021 | SET FOR ARGUMENT on Tuesday, March 30, 2021.Feb 01 2021 | Brief of petitioner TransUnion LLC filed.Feb 01 2021 | Joint appendix (Volumes I, II, & III) filed.Feb 04 2021 | Record requested from the U.S.C.A. 9th Circuit.Feb 04 2021 | Record from the U.S.C.A. 9th Circuit is electronic and located on Pacer.Feb 08 2021 | Brief amicus curiae of Retail Litigation Center, Inc. filed.Feb 08 2021 | Brief amicus curiae of Consumer Data Industry Association filed.Feb 08 2021 | Brief amicus curiae of Washington Legal Foundation filed.Feb 08 2021 | Brief amici curiae of eBay Inc., et al. filed.Feb 08 2021 | Brief amici curiae of The Home Depot, Inc. et al. filed.Feb 08 2021 | Brief amici curiae of National Association of Manufacturers, et al. filed.Feb 08 2021 | Brief amicus curiae of Professional Background Screening Association filed.Feb 08 2021 | Brief amici curiae of The Chamber of Commerce of the United States of America, et al. filed.Feb 08 2021 | Brief amicus curiae of National Consumer Reporting Association, Inc. filed.Feb 08 2021 | Brief amicus curiae of The Product Liability Advisory Council, Inc. filed.Feb 08 2021 | Brief amicus curiae of ACA International filed.Feb 08 2021 | Brief amicus curiae of the United States in support of neither party filed.Feb 22 2021 | CIRCULATED.Mar 03 2021 | Brief of Sergio L. Ramirez not accepted for filing. (March 05, 2021)(Dupilicate submission)Mar 03 2021 | Brief of respondent Sergio L. Ramirez filed. (Distributed)Mar 05 2021 | Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.Mar 08 2021 | Brief amicus curiae of Electronic Privacy Information Center filed. (Distributed)Mar 09 2021 | Brief amicus curiae of Public Justice filed. (Distributed)Mar 10 2021 | Brief amicus curiae of National Association of Consumer Advocates filed. (Distributed)Mar 10 2021 | Brief amicus curiae of American Association for Justice filed. (Distributed)Mar 10 2021 | Brief amicus curiae of Electronic Frontier Foundation filed. (Distributed)Mar 10 2021 | Brief amici curiae of Legal Scholars filed. (Distributed)Mar 10 2021 | Brief amici curiae of Complex Litigation Law Professors filed. (Distributed)Mar 10 2021 | Brief amici curiae of Impact Fund, NAACP Legal Defense & Educational Fund, Inc., and 24 Civil Rights Organizations filed. (Distributed)Mar 10 2021 | Brief amicus curiae of Constitutional Accountability Center filed. (Distributed)Mar 10 2021 | Brief amicus curiae of Owner-Operator Independent Drivers Association, Inc. filed. (Distributed)Mar 10 2021 | Brief amici curiae of National Consumer Law Center, et al. filed. (Distributed)Mar 10 2021 | Brief amici curiae of Public Citizen and Public Citizen Foundation filed. (Distributed)Mar 10 2021 | Brief amicus curiae of The Committee to Support the Antitrust Laws filed. (Distributed)Mar 10 2021 | Brief amici curiae of UC Berkeley Center for Consumer Law and Economic Justice, et al. filed. (Distributed)Mar 19 2021 | Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.Mar 19 2021 | Reply of petitioner TransUnion LLC filed. (Distributed)Mar 30 2021 | Argued. For petitioner: Paul D. Clement, Washington, D. C. For United States, as amicus curiae: Nicole F. Reaves, Assistant to the Solicitor General, Department of Justice, Washington, D. C. For respondent: Samuel Issacharoff, New York, N. Y.★ Support this podcast on Patreon ★
QUESTION PRESENTED:1) Whether a defendant in a securities class action may rebut the presumption of classwide reliance recognized in Basic Inc. v. Levinson by pointing to the generic nature of the alleged misstatements in showing that the statements had no impact on the price of the security, even though that evidence is also relevant to the substantive element of materiality; and (2) whether a defendant seeking to rebut the Basic presumption has only a burden of production or also the ultimate burden of persuasion.DateProceedings and Orders (key to color coding)Aug 21 2020 | Petition for a writ of certiorari filed. (Response due September 24, 2020)Aug 25 2020 | Blanket Consent filed by Petitioner, Goldman Sachs Group, Inc., et al.Sep 08 2020 | Motion to extend the time to file a response from September 24, 2020 to October 23, 2020, submitted to The Clerk.Sep 08 2020 | Blanket Consent filed by Respondent, Arkansas Teacher Retirement System, et al.Sep 09 2020 | Motion to extend the time to file a response is granted and the time is extended to and including October 23, 2020.Sep 24 2020 | Brief amicus curiae of Washington Legal Foundation filed.Sep 24 2020 | Brief amicus curiae of Retail Litigation Center, Inc. filed.Sep 24 2020 | Brief amici curiae of Former SEC Officials and Law Professors filed.Sep 24 2020 | Brief amicus curiae of The Society for Corporate Governance filed.Sep 24 2020 | Brief amici curiae of Securities and Financial Markets Association, et al. filed.Sep 24 2020 | Brief amici curiae of Financial Economists filed.Oct 21 2020 | Brief of respondents Arkansas Teacher Retirement System, et al. in opposition filed.Oct 21 2020 | Motion of petitioner to delay distribution of the petition for a writ of certiorari under Rule 15.5 from November 4, 2020 to November 17, 2020, submitted to The Clerk.Oct 26 2020 | Motion to delay distribution of the petition for a writ certiorari until November 17, 2020 granted.Nov 17 2020 | DISTRIBUTED for Conference of 12/4/2020.Nov 17 2020 | Reply of petitioners Goldman Sachs Group, Inc., et al. filed. (Distributed)Dec 07 2020 | DISTRIBUTED for Conference of 12/11/2020.Dec 11 2020 | Petition GRANTED.Jan 14 2021 | Blanket Consent filed by Respondent, Arkansas Teacher Retirement System, et al.Jan 14 2021 | Blanket Consent filed by Petitioner, Goldman Sachs Group, Inc., et al.Jan 25 2021 | Brief of petitioners Goldman Sachs Group, Inc., et al. filed.Jan 25 2021 | Joint appendix (2 volumes & 1 supplemental) filed. (Statement of costs filed)Feb 01 2021 | SET FOR ARGUMENT on Monday, March 29, 2021.Feb 01 2021 | Brief amicus curiae of United States support of neither party filed.Feb 01 2021 | Brief amicus curiae of Retail Litigation Center, Inc. filed.Feb 01 2021 | Brief amici curiae of American International Group, Inc. et al. filed.Feb 01 2021 | Brief amici curiae of Financial Economists filed.Feb 01 2021 | Brief amicus curiae of Washington Legal Foundation filed.Feb 01 2021 | Brief amici curiae of Securities and Financial Markets Association, et al. filed.Feb 01 2021 | Brief amici curiae of Former SEC Officials and Law Professors filed.Feb 01 2021 | Brief amicus curiae of The Society for Corporate Governance filed.Feb 04 2021 | Record requested from the U.S.C.A. 2nd Circuit.Feb 11 2021 | Record from the U.S.C.A. 2nd Circuit, along with SEALED material been electronically filed.Feb 11 2021 | Record from the U.S.D.C. Southern District of New York is electronic and located on Pacer, with the exception of 1 Box of Sealed records.Feb 22 2021 | CIRCULATED.Feb 24 2021 | Brief of respondents Arkansas Teacher Retirement System, et al. filed. (Distributed)Feb 26 2021 | Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.Mar 03 2021 | Brief amicus curiae of Better Markets, Inc. filed. (Distributed)Mar 03 2021 | Brief amici curiae of Former SEC Officials filed. (Distributed)Mar 03 2021 | Brief amicus curiae of The North American Securities Administrators Association, Inc. filed. (Distributed)Mar 03 2021 | Brief amici curiae of Financial Economists filed. (Distributed)Mar 03 2021 | Brief amici curiae of Evidence Law Professors filed. (Distributed)Mar 03 2021 | Brief amici curiae of Institutional Investors filed. (Distributed)Mar 03 2021 | Brief amici curiae of Professors of Securities Law and Complex Litigation filed. (Distributed)Mar 03 2021 | Brief amici curiae of State of New Mexico et al. filed. (Distributed)Mar 03 2021 | Brief amici curiae of Public Citizen and Public Citizen Foundation filed. (Distributed)Mar 03 2021 | Brief amicus curiae of National Association of Shareholder and Consumer Attorneys filed. (Distributed)Mar 08 2021 | Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.Mar 19 2021 | Reply of petitioners Goldman Sachs Group, Inc., et al. filed. (Distributed)Mar 29 2021 | Argued. For petitioners: Kannon K. Shanmugam, Washington, D. C. For United States, as amicus curiae: Sopan Joshi, Assistant to the Solicitor General, Department of Justice, Washington, D. C. For respondents: Thomas C. Goldstein, Bethesda, Md.★ Support this podcast on Patreon ★
In Atlantic Richfield Co. v. Christian, the Supreme Court will determine whether the Comprehensive Environmental Response, Compensation, and Liability Act preempts state common law claims for restoration damages for pollution also addressed by an EPA-directed cleanup plan. In this case, a Montana copper smelter polluted its neighbors’ properties for decades but has also spent $450 million to remediate this pollution under a plan negotiated with EPA. Believing Montana state law entitles them to more extensive restoration than the EPA plan provides, neighboring property owners sued Atlantic Richfield for trespass and nuisance, seeking restoration damages and other relief. Jonathan Wood and Corbin Barthold join us to discuss the oral argument in this case and its implications for CERCLA and property rights.In this special, extended analysis episode, we have two guests. The first voice you will hear is Corbin Barthold, Senior Litigation Counsel at Washington Legal Foundation followed by Jonathan Wood, Senior Attorney at the Pacific Legal Foundation.As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
In Atlantic Richfield Co. v. Christian, the Supreme Court will determine whether the Comprehensive Environmental Response, Compensation, and Liability Act preempts state common law claims for restoration damages for pollution also addressed by an EPA-directed cleanup plan. In this case, a Montana copper smelter polluted its neighbors’ properties for decades but has also spent $450 million to remediate this pollution under a plan negotiated with EPA. Believing Montana state law entitles them to more extensive restoration than the EPA plan provides, neighboring property owners sued Atlantic Richfield for trespass and nuisance, seeking restoration damages and other relief. Jonathan Wood and Corbin Barthold join us to discuss the oral argument in this case and its implications for CERCLA and property rights.In this special, extended analysis episode, we have two guests. The first voice you will hear is Corbin Barthold, Senior Litigation Counsel at Washington Legal Foundation followed by Jonathan Wood, Senior Attorney at the Pacific Legal Foundation.As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.
In Atlantic Richfield Co. v. Christian, the Supreme Court will determine whether the Comprehensive Environmental Response, Compensation, and Liability Act preempts state common law claims for restoration damages for pollution also addressed by an EPA-directed cleanup plan. In this case, a Montana copper smelter polluted its neighbors’ properties for decades, but has also spent $450 million to remediate this pollution under a plan negotiated with EPA. Believing Montana state law entitles them to more extensive restoration than the EPA plan provides, neighboring property owners sued Atlantic Richfield for trespass and nuisance, seeking restoration damages and other relief. Jonathan Wood and Corbin Barthold join us to discuss the oral argument in this case and its implications for CERCLA and property rights.Featuring: -- Jonathan Wood, Senior Attorney, Pacific Legal Foundation-- Corbin K. Barthold, Senior Litigation Counsel, Washington Legal Foundation
In Atlantic Richfield Co. v. Christian, the Supreme Court will determine whether the Comprehensive Environmental Response, Compensation, and Liability Act preempts state common law claims for restoration damages for pollution also addressed by an EPA-directed cleanup plan. In this case, a Montana copper smelter polluted its neighbors’ properties for decades, but has also spent $450 million to remediate this pollution under a plan negotiated with EPA. Believing Montana state law entitles them to more extensive restoration than the EPA plan provides, neighboring property owners sued Atlantic Richfield for trespass and nuisance, seeking restoration damages and other relief. Jonathan Wood and Corbin Barthold join us to discuss the oral argument in this case and its implications for CERCLA and property rights.Featuring: -- Jonathan Wood, Senior Attorney, Pacific Legal Foundation-- Corbin K. Barthold, Senior Litigation Counsel, Washington Legal Foundation
On April 23, 2019, just one week after argument, the Supreme Court decided Emulex Corp. v. Varjabedian, a case involving a circuit split regarding Section 14(e) of the Securities Exchange Act of 1934 and whether it supports an inferred private right of action based on negligence or scienter. Emulex Corp. is a computer component seller that entered into a merger agreement with Avago Technologies Wireless Manufacturing. In the merger agreement, Avago offered to pay $8 per share, which reflected a premium of 26.4% on the price of Emulex stock the day before the merger was announced. Emulex filed with the Commission a public recommendation statement supporting the tender offer, recommending that Emulex shareholders tender their shares and noting that that Emulex shareholders would receive a premium on their stock. The statement also included a summary of a “fairness opinion” generated by Goldman Sachs, indicating its view that the tender offer was fair to shareholders. Omitted from the recommendation statement, however, was a one-page premium analysis by Goldman indicating that the takeover premium offered by Avago was actually below average, though within the normal range for mergers involving similar companies. The merger went forward, but thereafter Gary Varjabedian and other Emulex shareholders collectively brought suit against Emulex under Section 14(e) of the Securities Exchange Act, alleging that omission of the premium analysis page rendered the recommendation statement materially misleading. Emulex moved to dismiss, arguing that the facts alleged by plaintiffs did not sufficiently support the scienter required under Section 14(e). The district court agreed and ruled for Emulex but the U.S. Court of Appeals for the Ninth Circuit reversed. Although five other federal circuit courts of appeals had interpreted Section 14(e) to require scienter, the Ninth Circuit reasoned that the better reading of the provision in light of its legislative history required merely a showing negligence and not scienter.The Supreme Court granted certiorari to address whether Section 14(e) of the Securities Exchange Act of 1934 supports an inferred private right of action based on the negligent misstatement or omission made in connection with a tender offer. During oral argument, however, the Justices questioned whether certiorari had properly been granted, as the courts below had not thoroughly considered whether Section 14(e) authorizes a private right of action at all. Indeed, just over one week after oral argument, the Supreme Court issued a per curiam opinion dismissing the writ of certiorari as improvidently granted. To discuss the case, we have Cory Andrews, Senior Litigation Counsel at the Washington Legal Foundation.
On April 23, 2019, just one week after argument, the Supreme Court decided Emulex Corp. v. Varjabedian, a case involving a circuit split regarding Section 14(e) of the Securities Exchange Act of 1934 and whether it supports an inferred private right of action based on negligence or scienter. Emulex Corp. is a computer component seller that entered into a merger agreement with Avago Technologies Wireless Manufacturing. In the merger agreement, Avago offered to pay $8 per share, which reflected a premium of 26.4% on the price of Emulex stock the day before the merger was announced. Emulex filed with the Commission a public recommendation statement supporting the tender offer, recommending that Emulex shareholders tender their shares and noting that that Emulex shareholders would receive a premium on their stock. The statement also included a summary of a “fairness opinion” generated by Goldman Sachs, indicating its view that the tender offer was fair to shareholders. Omitted from the recommendation statement, however, was a one-page premium analysis by Goldman indicating that the takeover premium offered by Avago was actually below average, though within the normal range for mergers involving similar companies. The merger went forward, but thereafter Gary Varjabedian and other Emulex shareholders collectively brought suit against Emulex under Section 14(e) of the Securities Exchange Act, alleging that omission of the premium analysis page rendered the recommendation statement materially misleading. Emulex moved to dismiss, arguing that the facts alleged by plaintiffs did not sufficiently support the scienter required under Section 14(e). The district court agreed and ruled for Emulex but the U.S. Court of Appeals for the Ninth Circuit reversed. Although five other federal circuit courts of appeals had interpreted Section 14(e) to require scienter, the Ninth Circuit reasoned that the better reading of the provision in light of its legislative history required merely a showing negligence and not scienter.The Supreme Court granted certiorari to address whether Section 14(e) of the Securities Exchange Act of 1934 supports an inferred private right of action based on the negligent misstatement or omission made in connection with a tender offer. During oral argument, however, the Justices questioned whether certiorari had properly been granted, as the courts below had not thoroughly considered whether Section 14(e) authorizes a private right of action at all. Indeed, just over one week after oral argument, the Supreme Court issued a per curiam opinion dismissing the writ of certiorari as improvidently granted. To discuss the case, we have Cory Andrews, Senior Litigation Counsel at the Washington Legal Foundation.
On Monday, November 26, 2018, the U.S. Supreme Court heard oral arguments for Apple, Inc. v. Pepper. At issue is whether Apple device (e.g., iPhone, iPad, etc.) users who buy apps from Apple’s App Store may sue Apple for alleged antitrust violations, or whether only app developers may bring such claims. The 9th Circuit below held that the class-action app purchasers have the standing to seek antitrust damages because of Apple “functions” as a “distributor” when it delivers apps to purchasers. Resolution of the case hinges on properly applying Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), which held that only the direct purchaser of a good or service may sue an allegedly abusive monopolist for damages. Please join us as Mr. Cory L. Andrews, who filed an amicus curiae brief in the case on behalf of the Washington Legal Foundation, attended oral argument and will discuss the case’s likely outcome and impact. Teleforum calls are open to all dues-paying members of the Federalist Society. To become a member, sign up here. 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 Monday, November 26, 2018, the U.S. Supreme Court heard oral arguments for Apple, Inc. v. Pepper. At issue is whether Apple device (e.g., iPhone, iPad, etc.) users who buy apps from Apple’s App Store may sue Apple for alleged antitrust violations, or whether only app developers may bring such claims. The 9th Circuit below held that the class-action app purchasers have the standing to seek antitrust damages because of Apple “functions” as a “distributor” when it delivers apps to purchasers. Resolution of the case hinges on properly applying Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), which held that only the direct purchaser of a good or service may sue an allegedly abusive monopolist for damages. Please join us as Mr. Cory L. Andrews, who filed an amicus curiae brief in the case on behalf of the Washington Legal Foundation, attended oral argument and will discuss the case’s likely outcome and impact. Teleforum calls are open to all dues-paying members of the Federalist Society. To become a member, sign up here. 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 February 27, 2018 the Supreme Court decided Jennings v. Rodriguez, a case involving a lawsuit by aliens challenging their continued detention under civil immigration statutes without the benefit of an individualized bond hearing as to the justification for ongoing detention.Alejandro Rodriguez, a Mexican citizen and legal permanent resident of the United States, was convicted of a drug offense and vehicular theft, and ordered removed from the country. He was detained under 8 U.S.C. § 1226, which generally requires detention of aliens convicted of certain criminal offenses until removal proceedings are resolved. In addition to challenging his removal order, however, Rodriguez also sought habeas relief in federal court in the form of a bond hearing to determine whether his continued detention was justified. His case was consolidated with a related case, and after a round of litigation in the U.S. Court of Appeals for the Ninth Circuit, was certified as a class to address whether aliens in situations like Rodriguez, who had been detained longer than six months pursuant to an immigration detention statute, were entitled to a hearing to assess the justification for continued detention. They argued that the immigration statutes did not justify such detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the class member’s detention remains justified. The District Court granted the class injunctive relief along these lines and the Ninth Circuit affirmed, relying on the canon of constitutional avoidance. The Supreme Court thereafter granted the Government’s petition for certiorari.This case was originally argued before the Supreme Court in November 2016, but the Court thereafter ordered supplemental briefing and the case was then reargued in October 2017. The supplemental briefing directed the parties to address whether the alleged bond hearing requirement extended to aliens detained while seeking admission to the United States, to criminal or terrorist aliens, and how the proposed standard of proof applied to the bond hearing.By a vote of 5-3 the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion authored by Justice Alito, the Court held that the immigration provisions at issue--§§ 1225(b), 1226(a) and 1226(c) of Title 8--do not give detained aliens the right to periodic bond hearings during the course of their detention; the Ninth Circuit erred in applying the canon of constitutional avoidance to hold otherwise. That court should consider the aliens’ constitutional claims on remand, but should first reexamine whether they may continue litigating as a class.Justice Alito delivered the opinion of the Court except as to Part II. The Chief Justice and Justice Kennedy joined Justice Alito’s opinion in full, while Justices Thomas and Gorsuch joined as to all but Part II, and Justice Sotomayor joined only as to Part III-C. Justice Thomas filed an opinion concurring in part and concurring the judgment, in which Justice Gorsuch joined except for footnote 6. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg and Sotomayor joined. Justice Kagan was recused.To discuss the case, we have Richard Samp, Chief Counsel of the Washington Legal Foundation. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
On February 27, 2018 the Supreme Court decided Jennings v. Rodriguez, a case involving a lawsuit by aliens challenging their continued detention under civil immigration statutes without the benefit of an individualized bond hearing as to the justification for ongoing detention.Alejandro Rodriguez, a Mexican citizen and legal permanent resident of the United States, was convicted of a drug offense and vehicular theft, and ordered removed from the country. He was detained under 8 U.S.C. § 1226, which generally requires detention of aliens convicted of certain criminal offenses until removal proceedings are resolved. In addition to challenging his removal order, however, Rodriguez also sought habeas relief in federal court in the form of a bond hearing to determine whether his continued detention was justified. His case was consolidated with a related case, and after a round of litigation in the U.S. Court of Appeals for the Ninth Circuit, was certified as a class to address whether aliens in situations like Rodriguez, who had been detained longer than six months pursuant to an immigration detention statute, were entitled to a hearing to assess the justification for continued detention. They argued that the immigration statutes did not justify such detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the class member’s detention remains justified. The District Court granted the class injunctive relief along these lines and the Ninth Circuit affirmed, relying on the canon of constitutional avoidance. The Supreme Court thereafter granted the Government’s petition for certiorari.This case was originally argued before the Supreme Court in November 2016, but the Court thereafter ordered supplemental briefing and the case was then reargued in October 2017. The supplemental briefing directed the parties to address whether the alleged bond hearing requirement extended to aliens detained while seeking admission to the United States, to criminal or terrorist aliens, and how the proposed standard of proof applied to the bond hearing.By a vote of 5-3 the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion authored by Justice Alito, the Court held that the immigration provisions at issue--§§ 1225(b), 1226(a) and 1226(c) of Title 8--do not give detained aliens the right to periodic bond hearings during the course of their detention; the Ninth Circuit erred in applying the canon of constitutional avoidance to hold otherwise. That court should consider the aliens’ constitutional claims on remand, but should first reexamine whether they may continue litigating as a class.Justice Alito delivered the opinion of the Court except as to Part II. The Chief Justice and Justice Kennedy joined Justice Alito’s opinion in full, while Justices Thomas and Gorsuch joined as to all but Part II, and Justice Sotomayor joined only as to Part III-C. Justice Thomas filed an opinion concurring in part and concurring the judgment, in which Justice Gorsuch joined except for footnote 6. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg and Sotomayor joined. Justice Kagan was recused.To discuss the case, we have Richard Samp, Chief Counsel of the Washington Legal Foundation. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
On October 3, 2017, the Supreme Court heard reargument in Jennings v. Rodriguez, a class-action lawsuit by aliens challenging their continued detention under civil immigration statutes without the benefit of an individualized bond hearing or determination that otherwise justified their continued detention. After several rounds of litigation in U.S. district court and the U.S. Court of Appeals for the 9th Circuit, the district court entered a permanent injunction in favor of the alien class members. Under the injunction, the government must provide any class member who is subject to “prolonged detention”—six months or more—with a bond hearing before an Immigration Judge (“IJ”). At that hearing, the government must prove by clear and convincing evidence that the detainee is a flight risk or a danger to the community to justify the denial of bond. On subsequent appeal, the Ninth Circuit affirmed all aspects of the injunction except with respect to aliens detained under § 1231(a) (aliens who have been “ordered removed”). Although the Supreme Court heard argument on the case last term, it then requested supplemental briefing on the following questions and set the case for reargument this October: (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.To discuss the case, we have Richard Samp, Chief Counsel of the Washington Legal Foundation.
On October 3, 2017, the Supreme Court heard reargument in Jennings v. Rodriguez, a class-action lawsuit by aliens challenging their continued detention under civil immigration statutes without the benefit of an individualized bond hearing or determination that otherwise justified their continued detention. After several rounds of litigation in U.S. district court and the U.S. Court of Appeals for the 9th Circuit, the district court entered a permanent injunction in favor of the alien class members. Under the injunction, the government must provide any class member who is subject to “prolonged detention”—six months or more—with a bond hearing before an Immigration Judge (“IJ”). At that hearing, the government must prove by clear and convincing evidence that the detainee is a flight risk or a danger to the community to justify the denial of bond. On subsequent appeal, the Ninth Circuit affirmed all aspects of the injunction except with respect to aliens detained under § 1231(a) (aliens who have been “ordered removed”). Although the Supreme Court heard argument on the case last term, it then requested supplemental briefing on the following questions and set the case for reargument this October: (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.To discuss the case, we have Richard Samp, Chief Counsel of the Washington Legal Foundation.
On June 26, 2017, the Supreme Court decided California Public Employees’ Retirement System v. ANZ Securities. Between 2007 and 2008, Lehman Brothers Holdings raised capital through a number of public securities offerings. California Public Employees’ Retirement System (CalPERS) purchased some of these securities. In 2008, a putative class action alleging federal securities law violations was filed against respondents--various financial firms involved in underwriting the offerings--in the U.S. District Court for the Southern District of New York. Because the complaint was filed on behalf of all persons who purchased the identified securities, petitioner CalPERS fell within the putative class. In 2011, however, CalPERS filed a separate action, alleging identical violations against respondent firms in the U.S. District Court for the Northern District of California. That suit was then transferred and consolidated with other related litigation in the Southern District of New York. The New York class action then settled, but CalPERS opted out of the settlement. Respondents thereafter moved to dismiss CalPERS’ separate suit based on Securities Act language providing that “[i]n no event shall any such action be brought … more than three years after the security was bona fide offered to the public,” the CalPERS suit having fallen outside the three-year limit. CalPERS argued that the time limit was equitably tolled during the pendency of the class action, but the district court rejected the claim and U.S. Court of Appeals for the Second Circuit affirmed. -- By a vote of 5-4, the Supreme Court affirmed the judgment of the Second Circuit. In an opinion by Justice Kennedy, the Court held that CalPERS’ untimely filing of its individual complaint more than three years after the relevant securities offering was grounds for dismissal. The three-year limitation in the Securities Act, the Court indicated, is a “statute of repose” and therefore not subject to equitable tolling. Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Thomas, Alito, and Gorsuch. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined. -- And now, to discuss the case, we have Mark Chenoweth, who is General Counsel for the Washington Legal Foundation.
On April 17, 2017, the Supreme Court heard oral argument in California Public Employees’ Retirement System v. ANZ Securities. Between July 2007 and January 2008, Lehman Brothers raised over $31 billion through debt offerings. California Public Employees’ Retirement System (CalPERS), the largest pension fund in the country, purchased millions of dollars of these securities. CalPERS sued Lehman Brothers in 2011, and their case was merged with another retirement fund’s putative class action suit against Lehman Brothers and transferred to a New York district court. Later that year, the other parties settled, but CalPERS decided to pursue its claims individually. The district court dismissed for untimely filing, and the U.S. Court of Appeals for the Second Circuit affirmed. -- The question before the Supreme Court was whether the filing of a putative class action serves, under the American Pipe & Construction Co. v. Utah rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members. On Monday, the Supreme Court upheld the Court of Appeals dismissal of the lawsuit. Mark Chenoweth of the Washington Legal Foundation joined us to discuss the decision and its significance. -- Featuring: Mark Chenoweth, General Counsel, Washington Legal Foundation.
On March 21, 2017, the Supreme Court heard oral argument in Microsoft Corp. v. Baker. Plaintiffs brought a class action lawsuit against Microsoft Corporation (Microsoft) alleging that, during gameplay on the Xbox 360 video game console, discs would come loose and get scratched by the internal components of the console, sustaining damage that then rendered them unplayable. The district court, deferring to an earlier denial of class certification entered by another district court dealing with a similar putative class, entered a stipulated dismissal and order striking class allegations. Despite the dismissal being the product of a stipulation--that is, an agreement by the parties--the U.S. Court of Appeals for the Ninth Circuit determined that the parties remained sufficiently adverse for the dismissal to constitute a final appealable order. The Ninth Circuit, therefore, concluded it had appellate jurisdiction over the case. Reaching the merits, that Court held that the district court had abused its discretion, and therefore reversed the stipulated dismissal and order striking class allegations, and remanded the case. -- The question now before the Supreme Court is whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice. -- To discuss the case, we have Cory L. Andrews, who is Senior Litigation Counsel for Washington Legal Foundation.
On March 21, 2017, the Supreme Court will hear oral argument in Microsoft v. Baker. The case involves a class action lawsuit against the Microsoft Company by plaintiffs who alleged that during games on their Xbox video game console, the game disc would come loose and scratch the internal components of the device, permanently damaging the Xbox. Since only .4% of Xbox consoles experienced this issue, the district court determined that "a class action suit could not be certified and individuals in the suit would have to come forward on their own." The named plaintiffs voluntarily dismissed their claims with prejudice. The case was then appealed to the U.S. Court of Appeals for the Ninth Circuit where the court overturned the lower court's decision and held that the district court misapplied the law and abused its discretion in removing the class action allegations. -- As Microsoft v. Baker comes before the Supreme Court, the major question is whether or not appellate courts have the jurisdiction to review a class action suit after the plaintiffs voluntarily dismiss their claims with prejudice. -- Featuring: Cory L. Andrews, Senior Litigation Counsel, Washington Legal Foundation.
On November 1, 2016, the Supreme Court heard oral argument in State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby. State Farm Fire and Casualty Co. (State Farm) administered separate wind and flood damage policies in the Gulf Coast area at the time of Hurricane Katrina. In general, State Farm was responsible for paying wind damage from its own assets, while federal funds would pay for flood damage. The Rigsby sisters were State Farm claims adjusters who allegedly discovered in the aftermath of Hurricane Katrina that, with respect to properties covered under both wind and flood policies, State Farm was unlawfully classifying wind damage as flood damage in order to offload the cost of payment onto the federal government. Rigsby sued on behalf of the United States under the provisions of the federal False Claims Act (FCA), and continued to litigate the case after the United States declined to intervene. The district court focused discovery and trial on a single bellwether claim, and the jury found an FCA violation and awarded damages. -- Both sides appealed, with the Rigsbys (classified under the FCA as “relators”) seeking additional discovery to uncover and pursue other similar FCA violations by State Farm--and State Farm arguing, among other things, that the case should be dismissed because the Rigsbys’ counsel had violated the FCA’s seal requirement, by disclosing the existence of the FCA lawsuit to various news outlets. The U.S. Court of Appeals for the Fifth Circuit acknowledged the seal violation but concluded after applying a multi-factor test that the breach did not warrant dismissal here. -- The question now before the Supreme Court is what standard governs the decision whether to dismiss a relator's claim for violation of the False Claims Act's seal requirement, an issue on which the federal circuit courts of appeals have split three ways. -- To discuss the case, we have Cory Andrews, who is senior litigation counsel at the Washington Legal Foundation.
On Tuesday, November 1, the Supreme Court heard oral argument on the case State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby. The defendant, Cori Rigsby, violated the seal requirement of the False Claims Act (FCA) by disclosing her complaint against State Farm before the defendant was served. Although Rigsby won her original case against State Farm under the FCA, the U.S. Court of Appeals immediately dismissed the case due to the procedural violation. The question the Supreme Court must answer is what standards should be used to determine whether a claim made under the False Claims Act should be dismissed because the complaining party violated the seal requirement? -- Featuring: Cory Andrews, Senior Litigation Counsel, Washington Legal Foundation.
On June 16, 2016, the Supreme Court decided Universal Health Services v. United States ex rel. Escobar. This case involves the federal False Claims Act, which allows a private party to bring a “qui tam” action alleging that the defendant defrauded the federal government. In a “qui tam” action the government remains the actual plaintiff, but the private party--referred to as the “Relator”--typically litigates the case for the government’s benefit and receives a specified share of any recovery. -- Here, Relators alleged that their daughter--who died of a seizure in 2009--was treated by various unlicensed and unsupervised staff at Arbour Counseling Services, a facility owned by Universal Health Services, in violation of Massachusetts regulations. They argued that Arbour's alleged noncompliance with various supervision and licensing requirements rendered its reimbursement claims submitted to the state Medicaid agency actionably false under both the federal and Massachusetts False Claims Acts. The district court dismissed the complaint for failure to state a claim, holding that regulatory noncompliance alone was inadequate to render Arbour’s reimbursement claims “false.” The U.S. Court of Appeals for the First Circuit, however, reversed that judgment and remanded the case. Compliance with the regulations at issue, the court concluded, was a condition of government reimbursement to Arbour. By submitting reimbursement claims, the Court reasoned, Arbour implicitly certified compliance with that condition. Thus, by pleading regulatory noncompliance Relators adequately pleaded falsity. -- By a vote of 8-0, the Supreme Court vacated the judgment of the First Circuit and remanded the case for further proceedings. In an opinion delivered by Justice Thomas, a unanimous Court agreed that the implied false certification theory can be a basis for liability under the False Claims Act--when a defendant submitting a claim makes specific representations about the goods or services provided, but fails to disclose non-compliance with material statutory, regulatory, or contractual requirements that make those representations misleading with respect to those goods or services. But liability under the False Claims Act for failing to disclose violations of legal requirements, the Court explained, does not turn upon whether those requirements were expressly designated as conditions of payment. What matters is not the label the Government attaches to a requirement, but whether the defendant knowingly violated a requirement that the defendant knows is material to the Government’s payment decision. -- To discuss the case, we have Richard A. Samp, who is Chief Counsel at Washington Legal Foundation.
On June 20, 2016, the Supreme Court decided RJR Nabisco, Inc. v. The European Community. The European Community and 26 of its member states sued RJR Nabisco (RJR) in the U.S. District Court for the Eastern District of New York, alleging that RJR conducted a global money-laundering enterprise in violation of several laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), a federal statute. The alleged RICO enterprise involved the importation of illegal drugs into European countries by Colombian and Russian criminal organizations, with RJR helping to launder their drug money through a cigarette import-purchase scheme. Applying a presumption against extraterritorial application of federal law, the district court dismissed The European Community’s civil RICO claim. The U.S. Court of Appeals for the Second Circuit vacated that judgment and reinstated the RICO claim, however, concluding that various alleged predicates for RICO liability had been intended by Congress to apply extraterritorially, and that other offenses asserted sufficiently important domestic activity to come within RICO’s coverage. RJR subsequently obtained a writ of certiorari from the U.S. Supreme Court on the following question: whether, or to what extent, RICO applies extraterritorially. -- By a vote of 4-3, the Supreme Court reversed the judgment of the Second Circuit and remanded the case. Justice Alito delivered the opinion of the Court, which determined that the question of RICO’s extraterritorial application really divides into two questions: (1) Do RICO’s substantive prohibitions, contained in §1962, apply to conduct that occurs in foreign countries? (2) Does RICO’s private right of action, contained in §1964(c), apply to injuries that are suffered in foreign countries? On the first question, the Court held that under the facts asserted in this case, RICO’s prohibitions did apply extraterritorially. On the second question, however, the Court held that §1964(c)’s private right of action did not overcome the presumption against extraterritoriality, and thus a private RICO plaintiff must allege and prove a domestic injury. Because in this case an earlier stipulation had resulted in waiver and dismissal of respondents’ domestic claims, the Court explained, their remaining RICO damages claims rest entirely on injury suffered abroad and must be dismissed. -- Justice Alito’s majority opinion was joined in full by the Chief Justice and Justices Kennedy and Thomas, and as to Parts I, II, and III by Justices Ginsburg, Breyer, and Kagan. Justice Ginsburg filed an opinion concurring in part, dissenting in part, and dissenting from the judgment, in which Justices Breyer and Kagan joined. Justice Breyer filed an opinion concurring in part, dissenting in part, and dissenting from the judgment. Justice Sotomayor took no part in the consideration or decision of the case. -- To discuss the case, we have Cory L. Andrews, who is senior litigation counsel for the Washington Legal Foundation.
On March 21, 2016, the Supreme Court heard oral argument in RJR Nabisco, Inc. v. The European Community. The European Community and 26 of its member states sued RJR Nabisco (RJR) in the U.S. District Court for the Eastern District of New York, alleging that RJR conducted a global money-laundering enterprise in violation of several laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), a federal statute. The alleged RICO enterprise involved the importation of illegal drugs into European countries by Colombian and Russian criminal organizations, with RJR helping to launder their drug money through a cigarette import-purchase scheme. Applying a presumption against extraterritorial application of federal law, the district court dismissed The European Community’s civil RICO claim. The U.S. Court of Appeals for the Second Circuit vacated that judgment and reinstated the RICO claim, however, concluding that various alleged predicates for RICO liability had been intended by Congress to apply extraterritorially and that other offenses asserted sufficiently important domestic activity to come within RICO’s coverage. -- The U.S. Supreme Court granted RJR’s subsequent petition for writ of certiorari on the following question: whether, or to what extent, RICO applies extraterritorially. -- To discuss the case, we have Richard A. Samp, who is Chief Counsel at Washington Legal Foundation.
On January 20, 2016, the Supreme Court decided Campbell-Ewald Company v. Gomez. This case concerns a complaint by Jose Gomez that Campbell-Ewald Company, a marketing consultant for the U.S. Navy, allowed a third-party vendor to send him unsolicited text messages in violation of the Telephone Consumer Protection Act. The case presents two questions for the Supreme Court: (1) whether a case becomes moot when a plaintiff receives an offer of complete relief on his claim, including in a class action, and (2) whether the doctrine of derivative sovereign immunity for government contractors is limited to claims arising out of property damage caused by public works projects. The U.S. Court of Appeals for the Ninth Circuit had held that Gomez’s individual and class claims were not mooted, and that Campbell-Ewald was not entitled to derivative sovereign immunity. -- By a vote of 6-3, the Supreme Court affirmed the judgment of the Ninth Circuit, holding that (1) an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case, so the district court retains jurisdiction to adjudicate the plaintiff’s complaint, and (2) a federal contractor is not entitled to immunity from suit for its violation of the Telephone Consumer Protection Act when it violates both federal law and the government's explicit instructions. Justice Ginsburg delivered the opinion of the Court, in which Justices Kennedy, Breyer, Sotomayor, and Kagan joined. Justice Thomas filed an opinion concurring in the judgement. Chief Justice Roberts filed a dissenting opinion, in which Justices Scalia and Alito joined. Justice Alito also filed a dissenting opinion. -- To discuss the case, we have Mark Chenoweth, who is General Counsel at Washington Legal Foundation.
On December 14, 2015, the Supreme Court decided DIRECTV v. Imburgia. This case involves a class action lawsuit against DIRECTV by various California customers. Among other things, the agreement between DIRECTV and its customers contained a waiver of any right by either party to undertake class arbitration, unless “the law of your state” made such waivers unenforceable. At that time class arbitration waivers were unenforceable under California law, but in a subsequent case the United States Supreme Court held that this California rule was preempted by the Federal Arbitration Act (FAA). Concluding that the parties had intended to apply the rule as it existed prior to the Supreme Court decision, California trial and appellate courts refused to enforce the arbitration provision. The question before the Supreme Court was whether the FAA permitted this outcome; namely, the application of state law that had since been preempted by the FAA. -- By a vote of 6-3, the Supreme Court reversed the judgment of the California Court of Appeals and remanded the case. Justice Breyer delivered the opinion of the Court, holding that the arbitration provision must be enforced because the California appellate court’s interpretation was preempted by the FAA. -- Justice Breyer’s opinion was joined by the Chief Justice and Justices Scalia, Kennedy, Alito, and Kagan. Justice Thomas filed a dissenting opinion. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined. -- To discuss the case, we have Cory Andrews, who is Senior Litigation Counsel at the Washington Legal Foundation.
On October 14, 2015, the Supreme Court heard oral argument in Campbell-Ewald Company v. Gomez. -- This case concerns a complaint by Jose Gomez that Campbell-Ewald Company, a marketing consultant for the U.S. Navy, allowed a third-party vendor to send him unsolicited text messages in violation of the Telephone Consumer Protection Act. -- Three questions are before the Court. The first is whether a case becomes moot when a plaintiff receives an offer of complete relief on his claim, and the second is whether the answer to that changes if the plaintiff is attempting to bring a class action. The third question is whether the doctrine of derivative sovereign immunity for government contractors is limited to claims arising out of property damage caused by public works projects. -- To discuss the case, we have Mark Chenoweth, who is General Counsel at Washington Legal Foundation.
On October 6, 2015, the Supreme Court heard oral argument in DIRECTV v. Imburgia. This case involves a class action lawsuit which argues that DIRECTV improperly charged early termination fees to its customers. The question is whether the California Court of Appeal erred by holding that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act. -- To discuss the case, we have Cory Andrews, who is Senior Litigation Counsel at the Washington Legal Foundation.
This week's podcast explores when lying is a crime. A challenge to a law that makes lying about military honors is currently pending before the United States Supreme Court. We'll hear some of the Solicitor General's defense of that law, and we speak with NACDL member, attorney Michael Schafler, an author of NACDL's friend of the court brief in that case. We also speak with Richard Samp, Chief Counsel of the Washington Legal Foundation, a public interest law firm in Washington, D.C., and Tiffany Joslyn, NACDL White Collar Crime Policy Counsel and co-author of a groundbreaking report entitled, Without Intent: How Congress is Eroding the Criminal Intent Requirements in Federal Law. Learn more about NACDL. Music West Bank (Lezet) / CC BY-NC-SA 3.0 and Walkabout (Digital Primitives) / CC BY-NC-ND 3.0.
© 2020-2025 Ivy Podcast Discovery LLC
