Federalist Society Practice Groups Podcasts

On May 4, President Trump signed a Religious Liberty Executive Order relaxing IRS enforcement of the Johnson Amendment, which bans tax-exempt organizations like churches from political speech and activities. The “Promoting Free Speech and Religious Liberty” Executive Order also directs “the Secretary of Health and Human Services” to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.” -- An earlier version of the Executive Order was leaked in February, and contained many provisions, specifically about LGBTQ discrimination and federal contractors, which did not make it into the final. Prof. Carl Esbeck of the University of Missouri School of Law and Mr. Gregory Baylor of the Alliance Defending Freedom joined us to discuss the order and its precursor. This Teleforum is the third in our Executive Order Teleforum Series. -- Featuring: Mr. Gregory Baylor, Senior Counsel & Director of the Center for Religious Schools, Alliance Defending Freedom and Prof. Carl Esbeck, R.B. Price Professor Emeritus of Law/ Isabelle Wade & Paul C. Lyda Emeritus of Law, University of Missouri School of Law.

On April 20th, eleven state Attorneys General filed a joint amicus brief in support of ExxonMobil and its request to stop an investigation into allegations of fraud and deceptive practices surrounding the relationship between fossil fuels and climate change. Texas AG Ken Paxton was joined by ten other state Attorneys General on the brief in a New York District Court. On May 9, AG Paxton joined us to share his views on the underlying investigation, whether it impinges on Exxon’s free speech protections, and the ramifications a potential lawsuit could have on the fossil fuels industry. -- Featuring: Hon. Ken Paxton, Attorney General, Texas.

Since the Supreme Court’s June 2016 decision in Universal Health Services, Inc., v. United States ex rel Escobar, 136 S. Ct. 1989 (2016), there has been much discussion about whether the Court’s reformulation of the standards applicable to implied false certification benefits relators or defendants. However, the use of implied certification by relators and the DOJ to impose on defendants their interpretation of a regulation or term of a contract or grant has received much less attention. -- Increasingly, relators and the DOJ have been using the FCA to pursue civil fraud claims not based on factual misrepresentations, but rather on the relator’s or the Government’s view of what the “correct” interpretation of a regulation or a contract or grant term should be. It is not unusual for that interpretation to be different than the interpretation advanced in the promulgation of the regulation or different than the approach practiced by the promulgating agency. As the DOJ speaks officially for the sovereign United States, the DOJ (and relators suing on behalf of the United States) reserves the right to make interpretative disagreements into claims of fraud. -- This teleforum will explore implied certification where the dispute involves issues of regulatory or contractual interpretation and whether such a matter is really an administrative law dispute or fraud. -- Featuring: Marcia G. Madsen, Partner, Mayer Brown LLP and Brian D. Miller, Shareholder, Rogers Joseph O’Donnell.

Hillbilly Elegy is a passionate and personal analysis of a culture in crisis—that of white working-class Americans. The decline of this group has never before been written about as searingly from the inside. J. D. Vance tells the story of what a social, regional, and class decline feels like when you were born with it hung around your neck. The Vance family story begins hopefully in postwar America. J. D.’s grandparents were “dirt poor and in love,” and moved north from Kentucky’s Appalachia region to Ohio to escape the dreadful poverty around them. They raised a middle-class family, and eventually their grandchild (the author) would graduate from Yale Law School, a conventional marker of their success. -- But as the family saga of Hillbilly Elegy plays out, we learn that this is only the short, superficial version. Vance’s grandparents, aunt, uncle, sister, and, most of all, his mother, struggled profoundly with the demands of their new middle-class life, and were never able to fully escape the legacy of abuse, alcoholism, poverty, and trauma so characteristic of their part of America. Vance piercingly shows how he still carries the demons of their chaotic family history. -- A deeply moving memoir with its share of humor and vividly colorful figures, Hillbilly Elegy is the story of how upward mobility really feels. And it is an urgent and troubling meditation on the loss of the American dream for a large segment of this country. -- Author J.D. Vance and Adam White of the Hoover Institute will join us to discuss Hillbilly Elegy and the future of blue-collar America. -- Featuring: J.D. Vance, Author, Hillbilly Elegy and Principal, Mithril Capital Management LLC. Moderator: Adam J. White, Research Fellow, The Hoover Institution and Adjunct Professor, Antonin Scalia Law School, George Mason University.

The Biologics Price Competition and Innovation Act of 2010 (42 U.S.C. § 262) created an abbreviated pathway for FDA approval of biological products determined to be “biosimilar” to a reference product. The Act outlines a patent resolution and information exchange scheme, with litigation safe harbors during this “patent dance.” -- Subsection (l)(2)(A) provides that not later than 20 days after the application is accepted for review, “…the subsection (k) applicant – shall provide to the reference product sponsor a copy of the application…and other information that describes the processes used to manufacture the biological product…” Subsection (l)(8)(A) provides “[t]he subsection (k) applicant shall provide notice to the reference product sponsor not later than 180 days before the date of the first commercial marketing of the biological product licensed under subsection (k).” -- In 2015, Sandoz filed a subsection (k) application based on Amgen’s filgrastim (Neupogen®), but refused to provide its (l)(2)(A) disclosure and claimed that pre-FDA approval notice satisfied (l)(8)(A). Amgen sued in federal court on state law claims of unfair competition and conversion, and patent infringement, and requested a preliminary injunction. The district court granted Sandoz’ motion for partial summary judgment, holding that (l)(2)(A) disclosure was optional and that Sandoz did not have to wait for FDA approval before providing (l)(8)(A) notice. -- In a fractured opinion, the Federal Circuit affirmed on the (l)(2)(A) issue, holding that subsection (l)(9)(C) provided a remedy for the reference product sponsor to bring an immediate declaratory judgment action if the subsection (k) applicant failed to provide its (l)(2)(A) information, showing that disclosure was optional. The court reversed on the (l)(8)(A) issue, holding that notice before the FDA approved the subsection (k) application was ineffective under the statute. The Court granted certiorari on both issues. -- This case presents intriguing questions of statutory interpretation, as the boundaries of the BCPIA are explored. -- Featuring: Mr. Andrew A. Hufford, Intellectual Property Attorney, Brinks Gilson & Lione.

The Missouri Department of Natural Resources (DNR) denied a Learning Center run by Trinity Lutheran Church of Columbia, Inc. (Trinity) federal funding to refurbish children’s playgrounds on the grounds of religious affiliation. The DNR offers Playground Scrap Tire Surface Material Grants to organizations that qualify for resurfacing of playgrounds. Though the licensed pre- school Learning Center incorporates religious instruction into is curriculum, the school is open to all children. Trinity’s Learning Center was denied funding based on Article I, Section 7 of the Missouri Constitution; the section reads: “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” -- Trinity claimed that the DNR infringed upon their rights under the Equal Protection Clause of the Fourteenth Amendment and the First Amendment’s protections of freedom of religion and speech. The district court dismissed Trinity’s allegations, claiming that Trinity failed to file a specific claim. Trinity responded by amending its complaint to an allegation that other religious institutions had previously received the DNR funding; nevertheless, the district court denied the motions. The Eighth Circuit Court of Appeals upheld the lower court decision, agreeing with both the dismissal and denial of motions. -- The question at the heart of the case is whether or not the First Amendment’s free exercise of religion and the Fourteenth Amendment's Equal Protection Clause protect religious institutions from discrimination regarding the distribution of public funds. Ilya Shapiro of the CATO Institute and Hannah C. Smith of The Becket Fund for Religious Liberty joined us after oral arguments to discuss the case and the potential weight of the precedent set by decision. -- Featuring: Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute and Hannah C. Smith, Senior Counsel, The Becket Fund for Religious Liberty.

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee provided an update on recent important activity at the Consumer Financial Protection Bureau (CFPB). The call will cover many interesting topics including an update of PHH’s D.C. Circuit U.S. Court of Appeals case against the CFPB, a recent Executive Order which appears to apply to the CFPB, congressional activity regarding the CFPB, the CFPB’s recent fines and other actions, and the CFPB’s (and Federal Reserve Board’s) Office of Inspector General (OIG) audit report entitled “The CFPB Can Strengthen Contract Award Controls and Administrative Processes.” -- Featuring: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association and Julius L. Loeser, Of Counsel, Winston & Strawn LLP.

In late March, Congress used the Congressional Review Act to reverse the FCC’s controversial Broadband ISP Privacy Order. The FCC had overwritten the FTC’s prior regulation of ISP privacy, after President Obama took to YouTube following the 2014 mid-term elections, to call for the regulation of ISPs as common carriers, under a framework dating from the monopoly provision of telephone service. -- The current FCC Chairman, Ajit Pai has announced he aims to deregulate, focused on removing outdated regulations to encourage investment and innovation. Pai’s Digital Empowerment Agenda sees competitive broadband networks as engines of economic growth. Observers expect the underlying decision from the Obama era to regulate ISPs as common carriers – aka Open Internet or Net Neutrality – to be re-considered soon. The Chairman has also proposed revising broadcast ownership rules to reflect today’s more diverse media landscape, and repurposing spectrum to facilitate the next generation of mobile broadband and Internet of Things. Maximizing access to spectrum for “5G” broadband and IoT will require repurposing some federal spectrum, so the President’s federal spectrum manager at Commerce (NTIA) will play a critical role. -- In our third segment of the Legal Options for the New Administration Teleforum Series, Bryan Tramont, Chair of the Federalist Society Telecommunications Executive Committee, moderated a discussion with Chairman Ajit Pai’s Senior Counsel, Nick Degani, and Patricia Paoletta, a telecom partner at the law firm of Harris, Wiltshire & Grannis LLP. -- Featuring: Nicholas Degani, Senior Counsel to FCC Chairman Ajit Pai; formerly Wireline Legal Advisor to FCC Commissioner Ajit Pai and Patricia Paoletta, Partner at Harris, Wiltshire & Grannis LLP, named by the Trump-Pence Transition Team to the FCC Landing Team. Moderator: Bryan Tramont, Managing Partner of Wilkinson, Barker & Knauer, former FCC Chief of Staff; Chair of the Federalist Society Telecommunications Executive Committee.

n March 8, Judge Frances M. Tydingco-Gatewood of the District Court of Guam struck down a Guam law that permitted only those who meet the definition of “Native Inhabitants of Guam” to vote in a future status plebiscite. This decision has been met with opposition from elected officials, protests at the federal courthouse, public rallies, and now an appeal to the Ninth Circuit Court of Appeals. -- Supporters of the plebiscite are forcing a reexamination of the role of the United States on this strategically important island and opponents contend they are doing so without giving all citizens a voice in the process. What did the district court decide, and what does the reaction say about the rule of law and respect for the Constitution? Christian Adams joined us to discuss the latest in Davis v. Guam. -- Featuring: J. Christian Adams, Election Lawyer Center.

How might America reform the modern administrative state—not only to limit its power, but to restore its constitutional accountability to Congress, the President, and the courts? That is the subject of a recent report by National Affairs, on policy reforms for a more accountable administrative state. In its four chapters, the report: 1. Diagnoses the fundamental problems underlying the modern administrative state, which reflect a failure of republican governance; 2. Proposes to restore Congress to its crucial constitutional role as the "First Branch" in lawmaking, policymaking, appropriations and oversight; 3. Proposes to modernize White House oversight of agency regulatory actions, primarily by shifting the Office of Information and Administration's role from one of reaction to one of action; and 4. Proposes to reform both the laws governing agency process and the laws governing judicial review of agency action, in order to improve the quality of agency actions and, relatedly, to ensure more meaningful judicial review of agency actions. -- To discuss these issues and proposals, please join us for a teleforum discussion with the report’s three authors: Adam White, Oren Cass, and Kevin Kosar. -- Featuring: Oren Cass, Senior Fellow, Manhattan Institute; Kevin Kosar, Governance Project Director and Senior Fellow, R Street Institute and Adam White, Research Fellow, The Hoover Institution and Adjunct Professor, Antonin Scalia Law School.

Are college job fairs and recruiting doomed as discriminatory activities? In February, a District Court in California ruled that job applicants could maintain a disparate impact claim under the Age Discrimination in Employment Act (ADEA) challenging the practice of recruiting entry-level workers mostly through a program available only to recent college graduates. But last October, the Eleventh Circuit affirmed en banc the dismissal of a case brought by an over-40 job seeker who alleged that the company engaged in age discrimination by using screening guidelines describing the “targeted candidate” as someone “2-3 years out of college” who “adjusts easily to changes,” and suggesting to avoid “applicants in sales for 8-10 years.” The two cases are Rabin v. PricewaterhouseCoopers LLP, --- F.Supp.3d ----, 2017 WL 661354 (N.D.Cal., 2017) and Villarreal v. R.J. Reynolds Tobacco, 839 F.3d 958 (11th Cir. 2016) Petition for Certiorari Filed (NO. 16-971), Feb 02, 2017. -- Eric S. Dreiband, a partner in the Washington office of Jones Day and former General Counsel of the Equal Employment Opportunity Commission, shared his thoughts on these cases and took listener questions. -- Featuring: Eric S. Dreiband, Partner, Jones Day.

This spring marks the 25th anniversary of the U.S. Supreme Court's decision in Lucas v. South Carolina Coastal Council. In Lucas, a 5-4 Court majority held that a state law can effect a "regulatory taking" and trigger inverse condemnation requirements if it deprives an owner of all viable uses of his land. Join our panel to hear a discussion of questions such as: Did Lucas mark a major change in Supreme Court regulatory takings doctrine? Was the decision about right, or did it go too far or not far enough? Is Lucas still relevant to regulatory takings law today, and what are the chances that the decision might be reconsidered or extended? -- Featuring: James S. Burling, Vice President of Litigation, Pacific Legal Foundation; Professor Eric R. Claeys, Professor of Law, Antonin Scalia Law School Professor and Michael A. Wolf, Professor of Law, Richard E. Nelson Chair in Local Government, University of Florida Levin College of Law.

Last Wednesday the Supreme Court handed down a 6-2 opinion resolving a long mystifying test of when a feature of a useful article may be protected by copyright law. Hewing closely to the text of the Copyright Act, the opinion, authored by Justice Thomas, announced a new separability test holding that a feature incorporated into the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a 2 or 3 dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work if it were imagined separately from the useful article. -- Professor Sandra Aistars of Antonin Scalia Law School at George Mason University explored the implications for copyright in general and industries beyond fashion. -- Featuring: Prof. Sandra Aistars, Clinical Professor and Senior Scholar and Director of Copyright Research and Policy of CPIP, Antonin Scalia Law School, George Mason University.

In this warm and intimate memoir, Judge Wilkinson of the United States Court of Appeals for the Fourth Circuit, delivers a chilling message. The 1960s inflicted enormous damage on our country; even at this very hour we see the decade’s imprint in so much of what we say and do. The chapters reveal the harm done to the true meaning of education, to our capacity for lasting personal commitments, to our respect for the rule of law, to our sense of rootedness and home, to our desire for service, to our capacity for national unity, to our need for the sustenance of faith. Judge Wilkinson does not seek to lecture but to share in the most personal sense what life was like in the 1960s, and to describe the influence of those eventful years upon the present day. -- Judge Wilkinson acknowledges the good things accomplished by the Sixties and nourishes the belief that we can learn from that decade ways to build a better future. But he asks his own generation to recognize its youthful mistakes and pleads with future generations not to repeat them. The author’s voice is one of love and hope for America. But our national prospects depend on facing honestly the full magnitude of all we lost during one momentous decade and of all we must now recover. -- Featuring: Danielle Sassoon, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of NY and Hon. J. Harvie Wilkinson III, Judge, United States Court of Appeals, Fourth Circuit.

This case is a combination of three cases, Advocate Health Care v. Stapleton, St. Peter’s Healthcare v. Kaplan, and Dignity Health v. Rollins, that confront the Employee Retirement Income Security Act of 1974 (ERISA) as it applies to churches and non-church religious non-profits. ERISA sets minimum standards for pension plans in private industry, such as an appeals process for participants and the right to sue for benefits. Churches are exempted from ERISA, however, the circuit courts have split over whether non-profit hospitals and schools are also exempted. Eric Baxter of the Becket Fund joined us to recap the oral arguments for this case, which were held on March 27. -- Featuring: Eric Baxter, Senior Counsel, The Becket Fund for Religious Liberty.