FedSoc Forums

On April 1, 2021, the U.S. Supreme Court decided Federal Communications Commission v. Prometheus Radio Project. Writing for the unanimous court, Justice Kavanaugh explained that the FCC's 2017 decision to modify its media-ownership rules was not arbitrary or capricious under the Administrative Procedure Act. The distinguished panel that joined us to discuss oral arguments is returning to discuss the ruling and its implications. Featuring: Ms. Jane E. Mago, Consultant in Media Policy and Law; former General Counsel, Federal Communications CommissionHon. Michael O'Rielly, Visiting Fellow, Hudson Institute; former Commissioner, Federal Communications CommissionMr. Christopher J. Wright, Partner, Harris, Wiltshire & Grannis; former General Counsel, Federal Communications CommissionModerator: Mr. Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies; Executive Committee Member, Federalist Society's Telecommunications & Electronic Media Practice Group---This Zoom panel is open to public registration. See the above link.

American Bar Association Model Rule 8.4(g) defines professional misconduct in relevant part as “conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Because the 8.4(g) professional misconduct definition is broad and applies to a wide swath of undefined activity, the model rule has prompted spirited debate in light of the serious competing interests implicated. Join us for a discussion of contrasting views from Professor Josh Blackman and Mr. Robert Weiner. Featuring: -- Josh Blackman, Professor of Law, South Texas College of Law Houston-- Robert Weiner, Partner, Arnold & Porter Kaye Scholer LLP -- Moderator: Kim Colby, Director of the Center of Law and Religious Freedom, Christian Legal Society

On Thursday, March 25, 2021, the Supreme Court issued its decision in Ford Motor Company v. Montana Eighth Judicial Dist. Court and the consolidated case of Ford Motor Company v. Bandemer. The case turned on specific personal jurisdiction, the type of contacts required by the Fourteenth Amendment to satisfy Due Process, and the Court’s precedent in International Shoe Co. v. Washington, which sets the standards required for an out-of-state defendant to be constitutionally called into a foreign state court. In this case, two plaintiffs sued Ford alleging product liability causes of action resulting from death and serious injury that occurred during accidents allegedly caused by product defects. Markkaya Gullett died and Adam Bandamer was seriously injured. The pair of wrongful death and serious bodily injury product liability claims were brought separately in the states where the death and the injury respectively took place: Montana and Minnesota.Ford Motor Co., as an out of state defendant incorporated in Delaware and headquartered in Michigan, argued in both cases that insufficient contacts connected Ford to the two forum states so neither the Montana nor the Michigan state court could constitutionally exercise specific personal jurisdiction over Ford. Both state court cases were heard by their state Supreme Courts and both times, the Supreme Courts ruled against Ford holding Ford was properly subject to personal jurisdiction in their state judicial system.Ford appealed both state Supreme Court decisions on the constitutional Due Process question. In an 8-0 decision, the Supreme Court ruled against Ford holding that Ford’s contacts with both forum states were sufficiently extensive and connected to the subject matter of each suit that an exercise of personal jurisdiction could satisfy Due Process and was reasonable and fair in line with International Shoe.Featuring: -- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center -- Jaime A. Santos, Partner, Goodwin Procter LLP

Recent cyber attacks by the Russian and Chinese governments involving SolarWinds and Microsoft exposed cyber-related vulnerabilities in the supply chains of many large and small companies that rely on SolarWinds and Microsoft for their internal security and IT services, which also experienced security breaches as a result of these attacks. Two former DOJ National Security officials from the Obama and Trump administrations will discuss the impact of these attacks, possible criminal and non-criminal responses, and pros and cons of each approach. Featuring:-- Kellen Dwyer, Adjunct Professor of Law, Antonin Scalia Law School, Former Deputy Assistant Attorney General, National Security Division-- Alex Iftimie, Partner and Co-Chair, Global Risk & Crisis Management Practice, Morrison & Foerster LLP, former Deputy Chief of Staff and Counsel to the Assistant Attorney General, National Security Division-- Moderator: Brian Lichter, Senior Director - Legal, Global Investigations & Cybersecurity Counsel, Cognizant Technology Solutions

In Brownback v. King, the Court addressed the Federal Tort Claims Act, (FTCA) which waives Federal sovereign immunity to allow plaintiffs to sue the United States for certain torts committed by Federal employees. The FTCA includes a judgment bar which precludes a plaintiff from suing a federal employee on a cause of action arising from the same subject matter as his FTCA claim. Following a violent encounter with two undercover FBI agents, King sued alleging an FTCA cause of action and an implied Bivens claim. The District Court dismissed both claims. Then the Sixth Circuit reversed, finding the District Court’s dismissal of King’s FTCA claims did not invoke the FTCA judgment bar because it had not reached the merits so King’s Bivens claim should be able to go forward. In a 9-0 opinion written by Justice Thomas, the Court reversed the Sixth Circuit holding the District Court’s decision reached the merits and implicated the FTCA judgment bar. Featuring: -- Roman Martinez, Partner, Latham & Watkins LLP-- Patrick Jaicomo, Attorney, Institute for Justice

Jack Phillips, of Masterpiece Cakeshop fame, is back in court for the third time since the Supreme Court’s 2017 decision. Phillips has most recently been sued in Colorado state court by Autumn Scardina, a transgender attorney who requested Phillips create a transgender transition cake. When Phillips declined, Scardina filed a complaint with the Colorado Civil Rights Commission. After being sued in Federal Court, Scardina dropped the CRC complaint then sued Phillips in state court, alleging discrimination and false advertising under Colorado state law. The false advertising claim was dismissed; trial on the remaining discrimination claim began on March 22, 2021 and a decision is expected soon. Joining us to discuss the complicated litigation is Mark Trammell, General Counsel, Center for American Liberty. Featuring: Mark Trammell, General Counsel, Center for American Liberty Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

On March 31, 2021, the Supreme Court hears oral arguments in the case of NCAA v. Alston. This case addresses a Ninth Circuit decision holding that the National Collegiate Athletic Association eligibility rules regarding compensation of student-athletes violate federal antitrust law. The Court is expected to review the decision according to circuit splits and general antitrust principles.Joshua Wright, a former commissioner at the Federal Trade Commission, joins us to discuss the case, oral arguments, and implications.Featuring:-- Hon. Joshua D. Wright, University Professor and Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University

On March 29, 2021, the Supreme Court will hear oral argument in the case of Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System. The case turns on class action issues and the 1988 Supreme Court case Basic Inc. v. Levinson. In Goldman Sachs, the Court will address whether a class action defendant in a case alleging securities fraud may rebut a presumption of class-wide reliance on an alleged misstatement by pointing to the generic nature of the statement and if so, whether that defendant ultimately bears the burden of production or the burden of persuasion. Featuring:Ted Frank, Director, Center for Class Action Fairness, Hamilton Lincoln Law Institute Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

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

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