Tag Archives: Media Nosh

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WLF Program Panelists Discuss Supreme Court’s “Deja Vu Docket”

PodiumPic1On Tuesday, February 12, WLF held its annual media briefing on the U.S. Supreme Court at its mid-term/winter break point.  As we’ve traditionally done, the program focused largely on cases to which the Court has granted cert since the term commenced back on the First Monday of October. The program, which was moderated by former Attorney General Dick Thornburgh, can be viewed in its entirety, at readers’ leisure, by clicking here (if you don’t have Microsoft Silverlight installed on your computer, you will be prompted to do so before you can view).

Our speakers, Patricia Millett, Roy T. Englert, Jr., and Catherine E. Stetson, focused on cases arising in the areas of intellectual property, arbitration, antitrust, class actions, and federal preemption.

One theme that emerged from the discussion was how many of the cases the Court will address in the coming months are “follow-on” cases from recent past Supreme Court decisions. Ms. Stetson termed this phenomenon the “deja vu docket.” She and the other panelists drew the following lines between past and current cases:

We would humbly add two cases that the speakers did not directly address from the “first half” of the October 2012 term:

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Vigorous Antitrust Enforcement Forecast at WLF Media Briefing Event

FTC_Man_Controlling_TradeAt Washington Legal Foundation’s media briefing program last Tuesday, Same Administration, New Management: What to Expect from DOJ and FTC on Antitrust and Consumer Protection, speaker Janet McDavid noted the aggressive challenges William Baer, the Justice Department’s new Assistant Attorney General for the Antitrust Division, initiated against mergers when he was director of the Federal Trade Commission’s Bureau of Competition.

Mr. Baer wasted no time substantiating Ms. McDavid’s point, filing suit to prevent the consummation of a merger between America’s highest market-share brewer, Anheuser-Busch InBev and Mexico’s largest, Grupo Modelo.

If the Justice Department takes action to keep inexpensive beer inexpensive (an action certainly counter to governments’ taxation and other policies aimed at advancing temperance), the business community can be sure that it won’t hesitate to move against other combinations, joint ventures, etc. in the next four years. Our hour-long program would be thus be a worthy investment of time.

In addition to Ms. McDavid, a partner at Hogan Lovells LLP, WLF’s January 29 program (which can be viewed by clicking the title above) included experienced perspectives from Squire Sanders partner Brady Dugan and Wilson Sonsini Goodrich & Rosati Of Counsel Andrea Murino. WLF Legal Policy Advisory Board Chairman, K&L Gates Counsel Dick Thornburgh, moderated the discussion.

In addition to assessing the future of merger review and enforcement, the speakers addressed civil exclusionary conduct actions; FTC and DOJ approaches to intellectual property (including standards-essential patents and patent “trolls”); criminal enforcement; international antitrust cooperation; and the division of labor between the two federal agencies.

A Powerpoint deck including slides utilized by Ms. McDavid and Ms. Murino can be downloaded here.

Addendum (Feb. 5): Further evidence of a more aggressive approach to mergers can also be seen in the Justice Department’s challenge to an already-consumated merger between two online product review companies.  Read more about it from several of Janet McDavid’s colleagues here.

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Happy First Monday

In case you need a quick tutorial on the cases affecting America’s free enterprise system that are on the 2012 Supreme Court docket, which kicks off this morning with Kiobel v. Royal Dutch Petroleum (WLF amicus brief here), take an hour to watch our annual media briefing preview of the term:

October 2012 Supreme Court preview

If you want to get a quick read on today’s case, Kiobel, you can skip forward to John Bellinger’s presentation by clicking on his name in the index.  The former State Department Legal Advisor focuses his entire presentation on the case.

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SCOTUS Sprint to the 2011 Term Finish

With two formally announced opinion release days left (June 18 and June 25), the U.S. Supreme Court currently has 14 undecided cases remaining on their October 2011 docket. As has been its custom in recent years, the Court is likely to add decision days to its calendar.

We at WLF have high hopes that the Court will conclude its business by June 25, so that the speakers at our annual end-of-the-term media briefing will have a full slate of cases to discuss. Our briefing will be held on Tuesday, June 26, 9:30-10:30 at our headquarters, 2009 Massachusetts Avenue, and also live online at www.wlf.org (free registration required). The press release is here. Our panel moderator will be The Honorable Dick Thornburgh, and our speakers will be Patricia Millett, Michael Carvin, and Gene Schaerr.

What does the Court have left to decide? In addition to the one (or ones, if the Court is so inclined, thought it’s doubtful) – HHS v. Florida (“ObamaCare”) – WLF has a distinct interest in the outcome of Christopher v. SmithKlineBeecham (courts’ deference to federal agencies), in which we filed an amicus brief, as well as Arizona v. U.S., in which we also filed an amicus brief.

Additional cases of interest remaining include:

  • First American Financial v. Edwards – a standing case argued back on November 28
  • FCC v. Fox – the First Amendment “fleeting expletive” case
  • U.S. v. Alvarez – the First Amendment “Stolen Valor” case
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Appellate Experts Assess Supreme Court at Mid-term Point

Yesterday, Washington Legal Foundation held its annual “High Court Halftime” briefing program to look back on some decisions from the Supreme Court’s October 2011 term and to preview upcoming arguments.

The video of this program is available here for on-demand viewing.

Hosted by WLF advisory board chairman, The Honorable Dick Thornburgh, and headlined by veteran Supreme Court advocate Carter Phillips, the briefing delved into the Court’s views on civil litigation, government regulation, federalism, and separation of powers. The speakers devoted significant attention to the numerous issues before the Court in challenges to the Affordable Care Act federal health care reform law. The 5.5 hours devoted to these cases is the most permitted by the Court since a 1970 rule change which limited each litigant to 30 minutes of argument time.

Speaker Cory Andrews of WLF’s Litigation Division also detailed a petition for certiorari WLF filed with the Court last week on behalf of small farmer Cory King, a victim of overzealous federal criminal prosecution.  Information about the case is available here.

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WLF’s 25th Annual Supreme Court Preview Media Briefing Tomorrow

9:30-10:45 a.m., September 14

Attend in person at 2009 Massachusetts Avenue, NW (Dupont Circle North Metro Exit) or online at www.wlf.org (free registration required)

Our Panel of Experts (full invitation here):

  • The Hon. Dick Thornburgh, K&L Gates LLP
  • Jonathan Cohn, Sidley & Austin LLP
  • Elizabeth Papez, Winston & Strawn LLP
  • Kevin Russell, Goldstein & Russell P.C

High Court Cases to Be Addressed:

  • Sackett v. EPA
  • FCC v. Fox
  • Caraco v. Novo Nordisk
  • Kurns v. Railroad Friction Products
  • National Meat Ass’n v. Harris
  • Credit Suiss v. Simmonds
  • CompuCredit Corp. v. Greenwood
  • First American Financial Corp. v. Edwards
  • Golan v. Holder

 

 

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Supreme Court Observations: AT&T Mobility v. Concepcion

Guest Commentary

Andrew McBride and Thomas McCarthy, Wiley Rein LLP*

The Supreme Court’s Wednesday ruling in AT&T v. Concepcion is a resounding win for freedom of contract principles.  It is also a great victory for both businesses and consumers.  

The Court reaffirmed that arbitration is a matter of consent and held that “class arbitration, to the extent that it is manufactured by [state law] rather than consensual,” is preempted by the Federal Arbitration Act (FAA).  The Court thus ensures that private agreements to arbitrate will be enforced according to their terms.  The Court’s ruling is quite broad; under the majority’s reasoning, it does not matter how a state might attempt to strike at class-arbitration waivers (through statute, regulation, or common law ) or on what rationale (e.g., unconscionability doctrine or amorphous concepts of public policy).  Any state law “[r]equiring the availability of class wide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.” Continue reading →

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WLF Media Nosh Program on Wal-Mart v. Dukes Available Online

On a day when the legal press was populated with stories about class action litigation, Washington Legal Foundation devoted an installment of its Media Nosh series this morning to a critically important class action case on which the U.S. Supreme Court will hear oral arguments next Tuesday, Wal-Mart v. Dukes. 

News today out of Massachusetts, where a federal court has certified a class of baristas suing Starbucks over its tip sharing policy, and from New Jersey, where a $100 million class action discrimination suit has been filed against Bayer, created an apt context for the briefing. Our three speakers, attorneys with different perspectives on the long-running suit against Wal-Mart, drew upon their expertise to preview the March 29 oral argument and offer analysis on what aspects of the case will attract the Justices’ focus.

The program can be viewed in its entirety by clicking HERE (Webcasting program is optimized for Internet Explorer).

Other resources from WLF include the briefs we have filed in the case over the past seven years; a Legal Opinion Letter by one of our briefing speakers, Andrew Trask; and another Legal Opinion Letter by WLF’s pro bono counsel on its Wal-Mart briefs, Jennifer Brown, on another federal appellate court ruling raising class action law issues similar to Wal-Mart.

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Former PA Gov. Thornburgh to Moderate Briefing on “ObamaCare” Suits Headlined by VA Attorney General Cuccinelli

Developments in the three major constitutional challenges to the Patient Protection and Affordable Care Act are occurring at a rapid pace, with an oral argument in Commonwealth of Virginia v. Sebelius and a decision on the federal government’s motions to dismiss in a Florida-based case, Florida v. United States, being the most recent (for commentary on the tax-related issues in Florida, see the post just below).

Tomorrow from 9:30 to 10:30 a.m., Washington Legal Foundation is hosting a live Media Nosh program on the issues surrounding the constitutional challenges and on what we can expect from the courts as the cases move forward.  Details for the program are below.