[Ed. Note: For more on the Gordon cert petition, watch WLF’s May 22 press conference, which featured former Solicitor General Gregory Garre, at our YouTube channel.]
The US Constitution imposes important checks on the exercise of executive power by the federal government. In particular, Article II specifies that executive power may be exercised only at the behest of properly appointed “officers” of the United States, and it sets forth detailed requirements for the appointment and Senate confirmation of such officers. However, a recent decision from the US Court of Appeals for the Ninth Circuit threatens to undermine those checks on federal power by permitting the Executive Branch to retroactively ratify actions taken by officials not properly appointed as “officers.” The Supreme Court should review and overturn the appeals court decision, which is the subject of a pending certiorari petition. Gordon v. Consumer Financial Protection Bureau, Case No. 16-673. Washington Legal Foundation represents Mr. Gordon in the Supreme Court. Continue reading
Gordon v. CFPB: Will the High Court Halt an End-Run Around the Appointments Clause?
To view this WLF Media Briefing program on our IBM Cloud Video channel click here.
To view the program on our YouTube channel, click here.
The program featured commentary on WLF cert petition on behalf of our client Chance Gordon currently pending before the US Supreme Court. The Court may decide as early as this Thursday, May 25, on our review request. WLF’s petition argues that the Consumer Financial Protection Bureau could not lawfully prosecute a claim against Mr. Gordon at a point when the agency lacked a lawfully appointed director.
Our Gordon v. CFPB page, which contains our briefs and press releases in the case, is available here.
Featured Expert Column—Civil Justice/Class Actions
Frank Cruz-Alvarez, a Partner in the Miami, FL office of Shook, Hardy & Bacon L.L.P., with Rachel A. Canfield, an Associate with the firm.
Most litigants are familiar with the federal sanction powers as promulgated under Federal Rules of Civil Procedure 11, 26, 30 and 37, as well as pursuant to 28 U.S.C. § 1927. Each sanction power is codified in the applicable Rule or statute and limited in scope to a particular type of misconduct.1 However, a court’s inherent power to levy sanctions is arguably broader and more amorphous in nature than any of the other sanction powers. As a result, many litigants are unclear about the full extent and application of a court’s inherent power to sanction.
On April 18 in Goodyear Tire & Rubber Co. v. Haeger, the United States Supreme Court provided more clarity on such limitations when it resolved a split of authority among federal appellate courts regarding the breadth of a federal court’s inherent authority to sanction a litigant for bad-faith misconduct. Continue reading
Featured Expert Contributor — Corporate Governance/Securities Law
Stephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law.
Disgorgement of ill-gotten gains long has been a basic tool in the Securities and Exchange Commission’s (SEC) penalty toolkit, despite a paucity of statutory authorization.1 The equitable nature of disgorgement has meant courts have had to resolve many questions without the benefit of statutory guidance. In Kokesh v. SEC,2 the US Supreme Court took up the seemingly technical—but surprisingly important—question of what statute of limitations applies to SEC disgorgement actions.
Appellant Charles Kokesh owned and controlled a pair of investment adviser firms that, in turn, managed four business development corporations (BDCs). Both the investment advisers and the BDCs were registered with SEC. SEC alleged that Kokesh misappropriated almost $35 million from the BDCs for the benefit of himself and the investment adviser firms. After a civil trial, a jury agreed that Kokesh had fraudulently misappropriated the funds. The trial judge ordered Kokesh to disgorge $34.9 million, which it found “reasonably approximates the ill-gotten gains causally connected to Defendant’s violations.” Continue reading
By Sara Kobak, W. Michael Gillette, and Aukjen Ingraham, Shareholders with Schwabe, Williamson & Wyatt, P.C. in Portland, OR.
Since the US Supreme Court clarified the due-process limits on the exercise of general or all-purpose jurisdiction in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), plaintiffs have reached for new arguments to support the exercise of general jurisdiction over corporate defendants in forums where the defendants cannot fairly be considered “at home.” With notable exceptions—including the decisions at issue in Bristol-Myers Squibb Co. v. Superior Court of California, Case No. 16-466, and Tyrell v. BNSF Railway Co., Case No. 16-405, both scheduled for argument before the Supreme Court on April 25, 2017—the majority of lower courts have rejected these attempts to evade Daimler and its due-process requirements. The most recent examples of decisions enforcing Daimler come from the high courts of Oregon and Missouri, with the Washington Legal Foundation submitting an amicus brief in the Oregon case. Continue reading
By John Lauro, a white-collar defense attorney who represented one of the WellCare defendants at trial and at the Eleventh Circuit.
On Friday, April 21, 2017, the US Supreme Court will meet in conference to consider a pending petition for certiorari in Farha v. United States, No. 16-888, a major white-collar fraud case raising an important issue of concern to the defense bar and their clients: whether “deliberate indifference” is a sufficient level of mens rea for proving “knowledge” with respect to federal criminal statutes. The High Court should grant review and reverse the US Court of Appeals for the Eleventh Circuit ruling holding otherwise.
Farha is a classic case of overcriminalization, where civil and administrative remedies are more appropriate in the regulatory area of complex healthcare and business law. The case was extensively discussed in prior postings at the WLF Legal Pulse (here and here) and a WLF Legal Backgrounder [hot link to Kaiser’s piece]. In brief, following a raid by 200 FBI Agents at the offices of WellCare, a Florida Medicaid health maintenance organization, several executives, including the CEO, CFO, and general counsel, were indicted on healthcare fraud charges based on the government’s interpretation of Florida’s Medicaid law. Continue reading
Featured Expert Contributor – Intellectual Property (Patents)
Jeffri A. Kaminski, Partner, Venable LLP, with Tyler Hale, Associate, Venable LLP.
In 1984, Congress passed the Drug Price Competition and Patent Term Restoration Act, commonly known as the Hatch-Waxman Act, and redrew the legal landscape for intellectual property in the pharmaceutical industry. The law balanced the need for brand-name drug innovators to profit from their research and development investments with the public good of low-cost generic drugs by creating a pathway for swift FDA approval of generic drugs immediately following the expiration of patent exclusivity. By all accounts, the law has been a success, creating the drug lifecycle we know and expect today: new drugs enter the market at a high price with a limited period of exclusivity, after which several generic competitors enter the market and drive prices down to a fraction of their original cost. Continue reading