On May 5, 2020, the Supreme Court heard oral argument in United States Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., a case which considers whether the First Amendment bars enforcement of a funding-related federal policy requirement not only against domestic organizations but also their foreign affiliates. The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 authorized the appropriation of billions of dollars to fund efforts by...
May 12, 2020•35 min
On May 4, 2020, the U.S. Supreme Court heard argument in United States Patent and Trademark Office v. Booking.com B.V., a case presenting the question whether the addition by an online business of a generic top-level domain (“.com”) to an otherwise generic term can create a protectable trademark. In 2011 and 2012, Booking.com sought trademark protection for its web address name, “Booking.com”--but the U.S. Patent and Trademark Office (PTO) rejected the application. &ldquo...
May 11, 2020•33 min
On Feb. 26, 2020, in a 9-0 decision, the Supreme Court decided Shular v. United States, rejecting the defense argument that Florida’s unique drug laws cannot be used to enhance a federal sentence. At issue was a federal statute known as the Armed Career Criminal Act (“ACCA”). ACCA imposes a mandatory 15-year sentence on defendants convicted of federal firearms-related felonies if they have 3 or more prior convictions for “serious drug offenses” or “violent fel...
May 08, 2020•15 min
On April 23, 2020, in a 9-0 decision, the Supreme Court decided Romag Fasteners Inc. v. Fossil Inc., holding that a plaintiff in a trademark infringement suit is not required to show that a defendant willfully infringed the plaintiff’s trademark as a precondition to an award of profits. The decision, which vacated and remanded the opinion below from the Federal Circuit, was written by Justice Gorsuch on April 23, 2020. Justice Alito filed a concurring opinion, in which Justices Breyer and ...
May 07, 2020•16 min
On Feb. 25, 2020, in a vote of 9-0 the U.S. Supreme Court decided Monasky v. Taglieri, holding that a child’s habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parents. The Hague Convention, and the federal law that implements it in the United States, indicate that a parent whose child has been removed t...
May 07, 2020•7 min
On April 23, 2020, in a 6-3 decision, the Supreme Court decided County of Maui, Hawai’i v. Hawai’i Wildlife Fund and vacated and remanded the case. The Court held that the Clean Water Act, which forbids “any addition” of any pollutant from “any point source” to “navigable waters” without the appropriate Environmental Protection Agency permit, requires a permit when there is a direct discharge from a point source into navigable waters or when there ...
May 05, 2020•11 min
On April 23, 2020, in a 5-4 decision, the Supreme Court decided Barton v. Barr, a case involving a dispute over whether, for the purposes of the “stop-time rule,” a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible”. The stop-time rule affects the discretion afforded the U.S. Attorney General to cancel the removal from the United States of a lawful permanent resident who has resided in the U.S. conti...
May 04, 2020•15 min
On April 20, 2020, the Supreme Court released its decision in Thryv, Inc. v. Click-To-Call Technologies, LP holding that the Patent Office decision to hear an inter partes review (“IPR”) challenge is not subject to judicial review on time-bar grounds. The majority found that ruling otherwise would “unwind the agency’s merits decision” and “operate to save bad patent claims.” To discuss the case we have Daniel L. Geyser, Chair, Supreme Court and Appellate...
Apr 30, 2020•36 min
On October 7, 2019, the Supreme Court heard oral arguments in Ramos v. Louisiana. In Ramos, Evangelisto Ramos was convicted of second-degree murder by the vote of 10 of 12 jurors. Challenging his conviction, Ramos argued that Louisiana’s statutory scheme permitting non-unanimous jury verdicts in non-capital felony cases violated his right to equal protection under the Fourteenth Amendment to the U.S. Constitution. Relying on its precedent, the Louisiana Supreme Court rejected Ramos’ ...
Apr 30, 2020•32 min
On March 3, 2020, the Supreme Court heard oral arguments for the case of Liu v. Securities and Exchange Commission (SEC). At issue is "whether the Securities and Exchange Commission may seek and obtain disgorgement from a court as “equitable relief” for a securities law violation even though the Supreme Court has determined that such disgorgement is a penalty." To discuss the case, we have Todd F. Braunstein, General Counsel - International, Willis Towers Watson. As always, the Feder...
Apr 28, 2020•15 min
On March 23, 2020, the Supreme Court held by a vote of 6-3 that the federal Due Process Clause does not require a state to adopt an insanity test that turns on a defendant’s ability to recognize that his or her crime was morally wrong. In an opinion written by Justice Kagan, the Court reaffirmed its 1968 plurality opinion in Powell v. Texas, 392 U. S. 514, declaring that criminal responsibility "is animated by complex and ever-changing ideas that are best left to the States to evaluate and...
Apr 22, 2020•19 min
On Nov. 25, 2020, the U.S. Supreme Court issued a summary opinion in Thompson v. Hebdon, a case involving campaign-finance law. Specifically at issue was whether Alaska’s political contribution limits are consistent with this Court’s First Amendment precedents. Currently, Alaska’s law imposes (among other things) a $500 annual limit on individual contributions to a political candidate and to any group other than a political party. The 9th Circuit U.S. Court of Appeals upheld th...
Apr 15, 2020•8 min
In its very first case on copyright, the Supreme Court under Chief Justice John Marshall was faced with the question of whether its own reports are protected by copyright, and decided in the negative. This term, the Supreme Court is called upon to clarify the scope of that decision, which it has not further clarified since two cases heard in 1888. The question presented in Georgia v. Public.Resource.Org Inc. is whether the annotations to the Official Code of Georgia are "government edicts" and t...
Apr 15, 2020•39 min
On March 23, 2020, the U.S. Supreme Court released a decision in Allen v. Cooper, which is the latest development in a decades-long series of Congressional enactments and Supreme Court rulings over whether and how Congress can abrogate the sovereign immunity of States from intellectual property infringement suits. This all-star panel will discuss the Court’s most recent decision in the context of the evolution of the Court’s sovereign immunity jurisprudence, the policy concerns of Co...
Apr 15, 2020•1 hr 1 min
On April 6, 2020, the Supreme Court held by a vote of 8-1 that when a law enforcement officer lacks information negating an inference that a vehicle’s driver is the registered owner, an investigative traffic stop made after running the vehicle’s license plate and learning that the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment. In an opinion written by Justice Thomas, the Court invoked its 1981 decision in United States v. Co...
Apr 09, 2020•19 min
On Jan. 14, 2020, the U.S. Supreme Court heard argument in Kelly v. United States, a case asking whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not that official’s subjective “real reason” for making the decision. In 2013, in a New Jersey scandal known as “Bridgegate,” petitioners William E. Baroni, Jr. and Bridget Anne Kelly manufactured a grid-lock...
Mar 20, 2020•20 min
On Nov. 25, 2020, the U.S. Supreme Court issued a summary opinion in Thompson v. Hebdon, a case involving campaign-finance law. Specifically at issue was whether Alaska’s political contribution limits are consistent with this Court’s First Amendment precedents. Currently, Alaska’s law imposes (among other things) a $500 annual limit on individual contributions to a political candidate and to any group other than a political party. The 9th Circuit U.S. Court of Appeals upheld th...
Mar 20, 2020•8 min
On Tuesday, in a 5-4 decision in McKinney v. Arizona, the Supreme Court of the United States issued a landmark death penalty and criminal procedure opinion about the division between direct and collateral review and the jury requirements that the Court had previously explicated in the Apprendi line of cases, including Ring v. Arizona and Hurst v. Florida. At issue was an Arizona Supreme Court opinion that conducted an appellate reweighing of aggravation and mitigation after a remand from the En ...
Mar 16, 2020•12 min
The case of Hernandez v. Mesa arises from a 2010 confrontation on the U.S.-Mexican border in which U.S. Border Patrol agent Jesus Mesa shot and killed Sergio Hernandez, a teenage Mexican national. Although the FBI apparently cleared Mesa of wrongdoing, and Hernandez was not standing on American soil at the time he was shot, the Hernandez family filed suit against Mesa and the federal government based on the Supreme Court's decision in Bivens v. Six Unknown Named Agents, which held that a federal...
Mar 12, 2020•22 min
On March 4, 2020, the Supreme Court oral argument in consolidated cases June Medical Services v. Russo and Russo v. June Medical Services (formerly June Medical Services v. Gee and Gee v. June Medical Services), which involve the constitutionality of Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital and whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations, such as Louisiana's a...
Mar 09, 2020•22 min
In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court will decide the constitutionality of the CFPB, an agency long criticized not just by the business community but also constitutional scholars who see major problems a single-director agency seemingly unaccountable to the president or anyone else. The lawsuit was brought by a law firm that assists in resolving personal-debt issues, among other legal work that puts it in the crosshairs of those who want greater regul...
Mar 06, 2020•22 min
On February 25, the Supreme Court heard oral arguments in the case of United States v. Sineneng-Smith. At issue is "whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional." To discuss the cases, we have Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland. As always, the Federalist Society tak...
Mar 03, 2020•33 min
On Dec. 9, 2019, the U.S. Supreme Court heard argument in Thryv, Inc. v. Click-to-Call Technologies, LP, a case involving a dispute over certain appeal and time restrictions applicable to “inter partes review” (IPR) proceedings before the Patent Trial and Appeal Board (the Board) of the U.S. Patent and Trademark Office. In 2013, Ingenio--a predecessor entity to petitioner Thryv, Inc.--initiated IPR proceedings to challenge the validity of a patent held by Click-to-Call Technologies, ...
Feb 24, 2020•20 min
On Dec 11, 2019 the Supreme Court decided Peter v. NantKwest Inc., a case considering whether a party opting to bring a challenge in federal district court to an adverse decision of the U.S. Patent and Trademark Office’s (PTO) Patent Trial and Appeal Board (PTAB) must pay the PTO’s resulting attorney’s fees. When a patent applicant is rejected by the PTO, and the PTAB affirms that decision on appeal, the aggrieved applicant may either pursue further (but relatively constrained)...
Feb 12, 2020•17 min
On Dec. 11, 2019, the U.S. Supreme Court heard argument in Monasky v. Taglieri, a case involving the standard of appellate review applicable to determinations of “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abduction, as well as the conditions under which habitual residence is established for an infant. The Hague Convention, and the federal law that implements it in the United States, indicate that a parent whose child has been removed t...
Feb 12, 2020•9 min
On Dec. 4, 2019, the U.S. Supreme Court heard argument in Intel Corp. Investment Policy Committee v. Sulyma, a case asking what degree of knowledge of a possible violation is necessary to trigger the three-year statute of limitations provided in the Employee Retirement Income Security Act (ERISA). Respondent Christopher Sulyma worked for Intel Corporation from 2010-12, and during that time participated in retirement plans governed by ERISA. In 2015, Sulyma brought suit against Intel’s inve...
Feb 05, 2020•17 min
On Nov. 4, 2019, the U.S. Supreme Court heard argument in Barton v. Barr, a case involving a dispute over whether, for the purposes of the “stop-time rule,” a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible”. The stop-time rule affects the discretion afforded the U.S. Attorney General to cancel the removal from the United States of a lawful permanent resident who has resided in the U.S. continuousl...
Jan 27, 2020•13 min
In Atlantic Richfield Co. v. Christian, the Supreme Court will determine whether the Comprehensive Environmental Response, Compensation, and Liability Act preempts state common law claims for restoration damages for pollution also addressed by an EPA-directed cleanup plan. In this case, a Montana copper smelter polluted its neighbors’ properties for decades but has also spent $450 million to remediate this pollution under a plan negotiated with EPA. Believing Montana state law entitles the...
Jan 13, 2020•36 min
On Oct. 16, 2019, the U.S. Supreme Court heard argument in Kansas v. Garcia, a case involving a dispute over whether the federal Immigration Reform and Control Act (IRCA) precludes states from using any information contained in a federal Form I-9, (which includes common information such as name, date of birth, and social security number) to prosecute the person with a state crime. Respondents Ramiro Garcia, Donaldo Morales, and Guadalupe Ochoa-Lara were convicted of identity theft (and/or making...
Jan 09, 2020•27 min
On Dec. 2, 2019, the U.S. Supreme Court heard argument in New York State Rifle & Pistol Association Inc. v. City of New York, a case involving a dispute over whether New York City rules limiting transportation of licensed firearms to ranges within New York City limits (and certain state-designated hunting areas) violate the Second Amendment, the dormant Commerce Clause, and the constitutional right to travel. Under New York state law, possessing a firearm without a license is prohibited. New...
Dec 20, 2019•16 min
