FedSoc Forums

The regulatory landscape for Private Funds has changed dramatically over the past decade, culminating in the SEC’s recent Private Fund Advisers regulation, which was recently struck down by the Fifth Circuit. In the wake of this important court decision, what’s next? Will the SEC go back to the drawing board? Is more regulation even needed? What broader implications can we draw for the legal landscape and regulatory governance principles going forward? Featuring: David Blass, Partner, Simpson Thacher Russ Ryan, Senior Litigation Counsel, New Civil Liberties Alliance Jennifer Choi, CEO, Institutional Limited Partners Association Moderator: Lindsey Keljo, Managing Director and Associate General Counsel, Head of Asset Management Group, SIFMA -- To register, click the link above.

This event will survey the SEC's current involvement in the cryptocurrency field. The conversation will include best practices for defending against SEC enforcement inquiries or investigations in the crypto industry. It will also examine the proactive legal approaches individuals and companies can take against the SEC, detailing how, when, and why they can bring suit. This discussion will conclude with a conversation about private sector initiatives to establish a sound disclosure protocol to avoid fraud and improve crypto asset disclosure. Featuring:Rachel Barnett, CLO of IEX ExchangeProf. Chris Brummer, Agnes Williams Sesquicentennial Professor of Financial Technology at Georgetown LawWilliam R. McLucas, Partner, WilmerHaleBrian Richman, Associate, Gibson, Dunn, & CrutcherPatrick Daugherty, Partner, Foley & Lardner (Moderator)

Pharmaceutical company Merck & Co., Inc. (Merck) filed a lawsuit against the U.S. Department of Health and Human Services (HHS) challenging the Medicare drug price negotiation program established by the Inflation Reduction Act of 2022. Merck argues that the drug pricing program violates the First Amendment and the Takings Clause of the Fifth Amendment, claiming it forces them to accept government-dictated prices and infringes on their property rights. The federal government, represented by HHS Secretary Xavier Becerra and others, contends that Merck's arguments are unfounded and that the negotiation program is essential for reducing drug costs and ensuring the financial stability of Medicare. The case could significantly impact drug pricing, Medicare costs, and federal regulatory authority in healthcare.The case was filed on June 6, 2023, in the U.S. District Court for the District of Columbia. On October 19, 2023, Merck filed an amended complaint adding its subsidiary Merck Sharp & Dohme LLC as a second plaintiff. The case is ongoing, with both parties having filed motions for summary judgment.Join us for a litigation update on Merck et al. v. Becerra et al. with Yaakov M. Roth, one of the lead attorneys at Jones Day representing Merck & Co., Inc.

In Gonzalez v. Trevino, the plaintiff, Sylvia Gonzalez, argued that her arrest was a retaliatory action violating her First Amendment rights, stemming from her political activities as a newly elected city council member who had organized a petition to remove the city manager. She contended that she should be allowed to pursue her retaliatory arrest claim based on the circumstances surrounding her case. On the other hand, the defendants, including Mayor Edward Trevino and other city officials, maintained that the arrest was lawful and based on probable cause, as Gonzalez was accused of stealing a government document. They argued that the existence of probable cause should bar Gonzalez's retaliatory arrest claim, relying on the precedent set in Nieves v. Bartlett, which generally prevents such claims when probable cause exists. The defendants also contended that Gonzalez failed to provide sufficient evidence of similarly situated individuals who were not arrested in comparable circumstances, which they believed was necessary to overcome the probable cause bar.On June 20, 2024, the Court issued its decision, reversing the Fifth Circuit in an 8-1 decision. Join us for a Courthouse Steps Decision program, where we will analyze this decision and its possible ramifications.

In Trump v. United States, the Supreme Court addressed the issue of presidential immunity from criminal prosecution for actions taken while in office. Former President Trump's legal team argued that a former president should have absolute immunity from criminal prosecution for official acts performed during their tenure, citing the need for presidents to act boldly without fear of future prosecution. They contended that all allegations in the indictment fell within Trump's official duties as president. The United States government, represented by Special Counsel Jack Smith, argued that while presidents may have some immunity for official acts, this does not extend to criminal conduct or actions outside the scope of presidential duties. The Court ruled in a 6-3 opinion that former presidents have absolute immunity for actions within their "conclusive and preclusive constitutional authority" and presumptive immunity for other official acts, but no immunity for unofficial acts. The case was remanded to lower courts to determine which of Trump's alleged actions were official or unofficial.Please join us in discussing the decision and its future implications.

Qualified immunity is perhaps the nation’s most controversial legal doctrine. Proponents say qualified immunity is necessary to give government officials—especially police—breathing room to act in split-second situations without fear of lawsuits. By requiring that a right be “clearly established” before an official can be sued for violating it, the doctrine is supposed to ensure officials have notice of what conduct to avoid before they put a foot wrong. Meanwhile, critics argue that qualified immunity makes it too difficult for victims of government abuse to pursue justice and too often protects officials who have egregiously violated the Constitution, all while failing to put officials on notice. And now new Institute for Justice research finds that the doctrine shields a wide array of government officials and conduct, including premeditated First Amendment retaliation. Join us as we consider these two perspectives on qualified immunity and seek an answer to the question, “Do we need qualified immunity?”Featuring: Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School Michael Perloff, Interim Legal Director, ACLUModerator: Robert McNamara, Deputy Litigation Director, Institute for Justice

In June 2023, the Coutts bank closed the account of British politician Nigel Farage. While NatWest, the owner of Coutts, initially claimed that Farage failed to meet the Coutts eligibility criteria of holding £1,000,000 or more in his account, it was later revealed that Farage's account was closed in part as Coutts felt that his beliefs and values did not align with theirs. Debanking, the practice of financial institutions closing accounts or refusing services to certain individuals or businesses, has risen in prominence as its proponents argue that debanking is necessary for risk management and regulatory compliance in an increasingly complex world. They say that debanking helps banks avoid involvement in money laundering, fraud, or illegal activities and maintain the financial system's integrity. Critics, however, argue that debanking can lead to unfair discrimination and economic exclusion, particularly for unpopular religious or marginalized groups, and may even be used as a tool for censorship. They worry that debanking has been used to target religious organizations or individuals, infringing on religious freedom by limiting their access to essential financial services and hindering their ability to practice or promote their beliefs. Featuring: Hon. Kevin Cramer, U.S. Senator, North DakotaHon. Brenda Bird, Attorney General, IowaHon. Sam Brownback, Former U.S. Senator and United States Ambassador-at-Large for International Religious FreedomProf. Peter Conti-Brown, Class of 1965 Associate Professor of Financial Regulation at The Wharton School of the University of Pennsylvania and Nonresident Fellow in Economics Studies at The Brookings InstitutionJeremy Tedesco, Senior Counsel, Senior Vice President of Corporate Engagement, Alliance Defending FreedomModerator: J.C. Boggs, Partner, King & Spalding

United States of America v. Donald J. Trump, Waltine Nauta, and Carlos De Oliveira marked the first federal indictment of a former U.S. president. The prosecution, led by Special Counsel Jack Smith, argued that Trump illegally retained hundreds of classified government documents at his Mar-a-Lago residence after leaving office and obstructed efforts to retrieve them. He said this posed a national security risk and violated laws governing the handling of sensitive information. Trump's defense team, however, argued that the appointment of Jack Smith as special counsel was unconstitutional, violating the Appointments Clause. They claimed that Smith lacked the proper authority to bring charges, as he was not a Department of Justice employee at the time of his appointment. Judge Aileen Cannon dismissed the case on July 15, ruling that the appointment of Smith had been unconstitutional. Join us as we discuss the case and its implications.

Some Intellectual Property experts contend that American patent reliability has been in decline for 20 years. They point to the threat of inter partes review, the misuse of march-in rights under the Bayh-Dole Act, the imposition of reasonable or reference price clauses, direct government price-setting, and, most importantly, an inability to obtain an injunction after a finding of infringement. In fact, since the Supreme Court decided eBay v. MercExchange in 2006, injunctions have declined precipitously - some studies have shown as much as a 91% reduction.Are current patent owners and their licensees taking a risk in believing that their patents will accomplish their raison d’être… affecting the right to exclude? Is it true that patent owners cannot count on their patents to prevent copycat products from entering the market or to allow patent owners or their licensees to charge market prices for their goods? Should injunctive relief be more readily available in patent cases?This FedSoc forum will explore the history of injunctive relief in patent cases and explain the eBay opinion and how it is currently being applied by the trial courts. This program will also discuss potential legislative proposals to provide regular access to injunctive relief in order to restore patent reliability.Featuring:Prof. Jonathan Barnett, Professor, University of Southern California Gould School of LawProf. Thomas Cotter, Taft, Stettinius & Hollister Professor of Law, University of Minnesota Law SchoolNick Matich, Principal, McKool SmithHon. Paul Michel, Former Chief Judge, United States Court of Appeals for the Federal CircuitModerator: Jeffrey Depp, Policy Consultant, Center for Strategic and International Studies--To register, click the link above.

High school French teacher Peter Vlaming was fired from his job in West Point, Virginia, for declining to refer to a female student using male pronouns. Vlaming filed suit in state court, alleging that the school board had violated his rights to the free exercise of religion and free speech under the Virginia Constitution. Late last year, the Virginia Supreme Court held that the Virginia Constitution provides more robust protections for religious freedom than the federal Free Exercise Clause as interpreted in Employment Division v. Smith. As the Court wrote, “the federal Smith doctrine is not and never has been the law in Virginia, and its shelf life in the federal courts remains uncertain.” In its place, the Virginia Supreme Court adopted a history-and-tradition approach that asks whether the religious claimant has committed or is seeking to commit “overt acts against peace and good order,” and whether the government’s interest in negating that threat could be satisfied by “less restrictive means” than denying a religious exemption. This opinion raises a host of interesting questions: Will the U.S. Supreme Court’s history-and-tradition test for Second Amendment challenges be expanded to apply to other constitutional rights? Will other state courts follow the Virginia Supreme Court’s lead in applying it to their own state constitutions? Did the Virginia Supreme Court get its history right? Could its historical analysis serve as the basis for the U.S. Supreme Court to revisit Smith? What rights should public schoolteachers have in the classroom? Should courts resolve conflicts between the alleged free-exercise and free-speech rights of teachers and the alleged rights of students to engage in their own forms of self-expression? Finally, what role, if any, does Title IX play in the analysis? This panel will address these and other questions raised by this important decision. Featuring: Prof. Stephanie Barclay, Professor of Law, University of Notre Dame Law School Prof. Kate Carté, Professor of History, Southern Methodist University Chris Schandevel, Senior Counsel, Alliance Defending Freedom's Appellate Advocacy Team Adam Unikowsky, Partner, Jenner & Block LLC (Moderator) Eric Treene, Senior Counsel, Storzer and Associates; Adjunct Professor at the Catholic University of America Law School