Teleforum

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 D

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, Cogn

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

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

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

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

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

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

On Thursday, March 25, the Supreme Court issued its decision in Torres v. Madrid. The case came before the court on a section 1983 claim filed by Roxanne Torres against two New Mexico police officers who were attempting to execute a warrant for her arrest. During the attempted arrest, Torres fled from the officers, who fired thirteen times after her fleeing car. Torres was hit twice and argued in her 1983 claim that those shots were an unreasonable seizure which violated her Fourth Amendment rights. The officers argued no seizure took place because Torres did not submit to the exerted force so there could be no Fourth Amendment claim. In a 5-3 decision, over the dissent of Justices Gorsuch, Thomas, and Alito, the Supreme Court sided with Torres finding that a seizure for purposes of the Fourth Amendment does take place where a police officer intentionally exerts force upon the person of another even where that person does not submit to the force exerted and even where the force is exerted from a distanc

In Caniglia v. Strom, the U.S. Supreme Court will decide whether the community-caretaking exception to the Fourth Amendment’s warrant requirement extends to the home. The general rule under the Fourth Amendment is that before police perform a search or seizure they must obtain a warrant. The community-caretaking exception, by contrast, allows police to search and seize without a warrant when engaged in community-caretaking activities that are entirely unrelated to the enforcement of criminal statutes.The Supreme Court first created the community-caretaking exception in a case called Cady v. Dombrowski, which involved a crashed car that police towed to a private garage and then searched without first obtaining a warrant. The Court’s decision upholding the officers’ actions noted the differences between homes and vehicles, including that car accidents on public thoroughfares are a “nuisance” requiring officers’ immediate attention.The First Circuit in Caniglia extended the c

On March 26, 2021, the Federalist Society's Federalism & Separation of Powers Practice Group hosted a webinar panel to discuss "When the Government Changes Sides in Ongoing Litigation."In the early months of the Biden Administration, the US Solicitor General's Office (OSG) has switched the federal government's position in several high-profile cases and withdrawn from other cases. While some may think the moves are politically motivated, there are legal reasons OSG switches its position between presidential administrations. Some believe, however, that OSG risks undermining the rule of law when it makes such decisions. Are we seeing an increase in altered litigation positions following administration change, or have the recent administrations’ decisions been consistent with prior practice? What are the appropriate factors to consider? What are some important such cases in the current and previous administrations, and are the decisions to switch sides or end those cases defensible? How should courts treat th

Education policy has long been a bi-partisan priority, and education has played a significant role in the development of constitutional law—from First to Fourteenth Amendment—over the past century. During the COVID-19 pandemic, debates about the structure of the public school system and the parental right to choose private or home schooling have come to a head. This program will focus on the debate over reform and school choice through the lens of a new book, Unshackled: Freeing America's K-12 Education System. Co-authors Clint Bolick and Kate Featuring: -- Hon. Clint Bolick, Supreme Court of Arizona-- Kate Hardiman, William H. Rehnquist Fellow, Cooper & Kirk PLLC-- Moderator: Prof. Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law, University of Notre Dame Law School

This teleforum will include a discussion about the Unitary Executive Theory, its judicial and legislative history, and its applicability to the President’s recent termination of EEOC General Counsel Sharon Gustafson. Ms. Gustafson will share her thoughts regarding her duties at the EEOC and the challenges for any individual performing such duties. The panelists will debate and discuss the authority of the President to exercise “at-will” termination authority over Senate-confirmed individuals serving on 'independent' boards and commissions.Featuring: -- Hon. W. Neil Eggleston, Partner, Kirkland & Ellis LLP-- Hon. Sharon Fast Gustafson, Former General Counsel, United States Equal Employment Opportunity Commission-- G. Roger King, Senior Labor and Employment Counsel, HR Policy Association

On March 23, 2021, the Supreme Court will hear oral argument in United States v. Cooley. The Court will address whether the Ninth Circuit erred in upholding the suppression of evidence obtained when an Indian tribe police officer temporarily detained a non-Indian crossing a reservation on a public right of way and discovered evidence of federal crime during the stop. Defendant Cooley argues the evidence should be suppressed because the officer’s stop and search exceeded the scope of jurisdiction permitted by the Indian Civil Rights Act of 1968.Joining us to discuss the Oral Argument is Anthony J. Ferate, Of Counsel at Spencer Fane LLP. Featuring: Anthony J. Ferate, Of Counsel at Spencer Fane LLP. 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, ple

On February 24, 2021, President Biden signed an executive order (EO) on a whole-of-government strategy to secure supply chains for critical and essential goods. The EO institutes a parallel examination of supply chain vulnerabilities: (1) a 100-day review of four key industries, including semiconductors and (2) a one-year review of a broader range of industries, including information and communications technology (ICT). At the same time, the Biden Administration did not withdraw the ICT supply chain security rule from the Trump Administration that is scheduled to go into effect March 22. Citing security benefits to the ICT supply chain, the Acting Chairwoman of the FCC has teed up a Notice of Inquiry on Open Radio Access Networks (ORAN) for the FCC’s March 17 meeting. The Commerce Department’s National Telecommunication and Information Administration has launched its own Notice of Inquiry on 5G Open Stack Challenge on behalf of the Department of Defense.What do these actions mean for the ICT sector, and the s

On February 24, 2021, President Biden signed an executive order (EO) on a whole-of-government strategy to secure supply chains for critical and essential goods. The EO institutes a parallel examination of supply chain vulnerabilities: (1) a 100-day review of four key industries, including semiconductors and (2) a one-year review of a broader range of industries, including information and communications technology (ICT). At the same time, the Biden Administration did not withdraw the ICT supply chain security rule from the Trump Administration that is scheduled to go into effect March 22. Citing security benefits to the ICT supply chain, the Acting Chairwoman of the FCC has teed up a Notice of Inquiry on Open Radio Access Networks (ORAN) for the FCC’s March 17 meeting. The Commerce Department’s National Telecommunication and Information Administration has launched its own Notice of Inquiry on 5G Open Stack Challenge on behalf of the Department of Defense.What do these actions mean for the ICT secto

In Cedar Point Nursery v. Hassid, the Supreme Court will decide whether a California “Access Regulation” violates the Takings Clause of the Fifth Amendment. The Access Regulation allows union organizers to enter the private property of agricultural employers in the state for three hours per day, 120 days per year, for the purposes of soliciting employees to join the union. Petitioners Cedar Point Nursery and Fowler Packing Company, Inc., are California agricultural employers subject to the Access Regulation. In 2015, union organizers came onto the property of Cedar Point Nursery, a strawberry plant harvester near the Oregon border. The same year, union organizers filed an unfair labor practices charge against Fowler Packing, a citrus and table grape grower, alleging that Fowler denied access to union organizers seeking to enter their property. Petitioners contend that the Access Regulation constitutes a per se taking by appropriating an easement for the benefit of third party union organizers. Pet

On February 3, 2021, the Supreme Court unanimously decided Federal Republic of Germany v. Philipp and Republic of Hungary v. Simon. The plaintiffs in Federal Republic of Germany are heirs of German Jewish art collectors who purchased a collection of medieval relics termed the Welfenschatz. As the Third Reich took control of Germany and began assimilating the great cultural achievements of the West, the Nazis government bought the Welfenschatz for one third of its value. Following World War II, the Welfenschatz changed hands, ultimately landing in a Berlin museum owned by the Federal Republic of Germany and maintained by the Stiftung Preussischer Kulturbesitz (SPK).After unsuccessfully seeking compensation from Germany, the heirs to the original owners brought common law property claims against Germany and SPK in United States District Court. Generally, the Foreign Sovereign Immunities Act (FSIA) would bar such a suit; Germany argued that the possibly applicable exception for “property taken in violation

The DOJ has charged Douglas Mackey, aka Ricky Vaughn, with conspiracy “to injure, oppress, threaten, or intimidate” people in the exercise of their constitutional rights. His crime? Using his social media platform in the months leading up to November 2016 to post memes about the Presidential election, including ones that – if taken literally – falsely state that people could vote for Hillary just by posting on Twitter and Facebook. Are such prosecutions consistent with the First Amendment? Are they authorized by federal law? Joining us to discuss is Professor Eugene Volokh, noted First Amendment scholar and the Gary T. Schwartz, Professor of Law at the UCLA School of Law, who recently wrote on the subject.Featuring: Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law Dial 888-752-3232 to access the call.

On March 8, 2021, the U.S. Supreme Court decided Uzuegbunam v. Preczewski. Writing for the 8-justice majority, Justice Clarence Thomas explained that a completed violation of a legal right does in fact satisfy the redressability element necessary for Article III standing. Justice Kavanaugh filed a concurring opinion, while Chief Justice Roberts filed a dissenting opinion. John Bursch, head appellate litigator at Alliance Defending Freedom, the firm that represented petitioner Chike Uzuegbunam, joins us to discuss the case, ruling, and implications for religious liberty, free speech law, and more. Featuring: John Bursch, Senior Counsel and Vice President of Appellate Advocacy, Alliance Defending Freedom---This Teleforum is open to the public and press. Dial 888-752-3232 to access the call.