FedSoc Forums

No poaching allowed! No, you have not wandered into a Hunter’s Safety Forum, but rather an in depth discourse regarding the Department of Justice, Antitrust Division’s recent criminal investigations and prosecutions of “No Poach” conduct. These agreements, which generally establish that Company A will not hire Company B’s employees and in exchange Company B agrees to do the same, have been in the DOJ crosshairs since 2016, but only in the last year have they been specifically referenced in public charging documents. DOJ’s decision to now criminally prosecute “no poach” agreements has resulted in approximately six charged cases from January 2021 to the present. The criminal antitrust defense bar, as well as some academics, have cried foul given that from their perspective the DOJ has created a new form of criminal antitrust conduct out of whole cloth and is prosecuting individuals and corporations who had no intent to violate the law nor had any indication that discussing employment concerns with another company was unlawful. The enforcers have responded just as forcefully and argue that it has always been criminal under Section 1 of the Sherman Act to allocate markets and “no poach” is nothing more than the allocation of the market for employees. Amidst this backdrop, our panel will examine the evolution of “no poach” from the DOJ’s 2016 Guidance for Human Resource Professionals to the cases that are currently pending before judges and at least one jury. Our panel will include former Principal Deputy Assistant Attorney General for Antitrust Barry Nigro, Co-Chair of the ABA Antitrust Section’s Cartel & Criminal Practice Committee Lindsey Vaala, former United States Attorney for the Eastern District of Virginia Zach Terwilliger, and Pepper Crutcher, chair of the Labor and Employment practice group at the Federalist Society and partner at Balch & Bingham, who will wrangle our panel and serve as moderator.Featuring:--Barry Nigro, Partner, Fried Frank, and former Principal Deputy Assistant Attorney General for Antitrust--Lindsey Vaala, Counsel, Vinson & Elkins, and Co-Chair, ABA Antitrust Section's Cartel and Criminal Practice Committee--Zach Terwilliger, Partner, Vinson & Elkins, and former United States Attorney for the Eastern District of Virginia--Moderator: Pepper Crutcher, Partner, Balch & Bingham and Chairman, Labor & Employment Practice Group at the Federalist Society

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases that will be covered are included below. United States v. Washington (April 18) – workers’ compensation; state and federal lawSiegel v. Fitzgerald (April 18) – Bankruptcy Judgeship Act; Bankruptcy Clause of the U.S. Constitution George v. McDonough (April 19) – veterans’ claims and Department of Veterans Affairs agency interpretationKemp v. United States (April 19) – Federal Rule of Civil Procedure 60(b)(1)Vega v. Tekoh (April 20) – Habeas motions under 42 U.S.C. 1983 and relief for Miranda violationsKennedy v. Bremerton (April 25) – the Speech and Establishment Clauses of the First AmendmentNance v. Ward (April 25) – method of execution and 42 U.S.C. 1983 habeas motionsBiden v. Texas (April 26) – remain in Mexico immigration policyShoop v. Twyford (April 26) – the All Writs Act and habeas petitionsOklahoma v. Castro-Huerta (April 27) – Indian Law Featuring:--Noel J. Francisco, Partner-in-Charge Washington, Jones Day--Allyson Newton Ho, Partner and Co-Chair, Constitutional and Appellate Law Practice Group, Gibson, Dunn & Crutcher LLP--Aaron M. Streett, Chairman, Supreme Court and Constitutional Law Practice, Baker Botts LLP --Misha Tseytlin, Partner, Troutman Pepper Hamilton Sanders LLP--Moderator: Elbert Lin, Partner, Hunton Andrews Kurth LLP

In his recent book John Fisher and Thomas More: Keeping Their Souls While Losing Their Heads, Robert Conrad, who serves as a federal district court judge in the Western District of North Carolina, details the lives, trials, and executions of two Catholic saints who opposed King Henry's bid for ecclesiastical approval of his divorce. Thomas More, an attorney and close advisor to the king, underwent a trial filled with grievous errors, the deprivation of due process, and more. Judge Conrad will join us to discuss his book, these two men, and the enduring relevance of their stories.Featuring: --Hon. Robert Conrad, District Judge, Western District of North Carolina--Moderator: William Saunders, Professor, The Catholic University of America; Co-Director of the Center for Religious Liberty, and Fellow, The Institute for Human Ecology

Following the prominent events of early 2020, as part of what’s often referred to as a national, racial reckoning, countless institutions altered their policies. Large publicly traded corporations (including Coca-Cola Company, Novartis AG, McDonald’s Corporation, Starbucks Coffee Company, Lowe’s Companies, Inc., NASDAQ, Inc., and much of the financial services industry) rolled out new policies — under banners invoking diversity, equity, and inclusion — concerning matters ranging from their selection of vendors, to hiring and promotions, to election of future directors to (in NASDAQ’s case) willingness to list customers at all. Those policies have raised concern among some over their potential violation of civil rights law (both state and federal), including Dan Morenoff, the Executive Director of the American Civil Rights Project. Do officers and directors of publicly traded companies advancing these policies run afoul of existing corporate law, with possible personal liability for breaches of fiduciary duty and for their use of corporate resources pursuing ultra vires actions? Citing the related concerns of shareholders, the ACR Project demanded the public retraction of such policies by Coke last year — Coke acceded in all but name in March, declaring that the policies at issue “have not been and are not policy of the company[.]” The ACR Project has since made demands on behalf of shareholders to the officers and directo rs of Lowe’s, Novartis, McDonald’s, and Starbucks. America First Legal appears to have taken a related tack this week in publicly demanding on behalf of shareholders that the Walt Disney Company’s officers and directors launch investigations into alleged violations of employee's civil rights. Featuring: Dan Morenoff, Executive Director, American Civil Rights Project--- To register, click the link above.

A federal statute allows citizens to sue state and local officers for violating constitutional rights, but there is no federal law that does the same for federal officers. In 1971, in a case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court held that a cause of action for damages against federal officers could be inferred from constitutional provisions. But in the 50 years since, the Court has struggled to explain how, or even if, a Bivens cause of action applies in different cases.In 2014, Erik Egbert, a Customs and Border Patrol Agent, went to the Smugglers Inn, which sits at the U.S.-Canada border, and approached a car carrying a guest from Turkey. The inn’s owner, Robert Boule, asked Egbert to leave. Egbert refused to do so and pushed Boule to the ground. After Boule complained to Egbert’s supervisors, Egbert suggested to the IRS that it investigate Boule. In Egbert v. Boule, argued on March 2, the Court continued to grapple with Bivens questions, including whether Bivens applies to First Amendment retaliation and whether federal officers engaged in immigration-related functions are subject to Bivens suits for violations of Fourth Amendment rights.Featuring:Anya Bidwell, Attorney and Elfie Gallun Fellow in Freedom and the Constitution, Institute for JusticeErin Hawley, Senior Legal Fellow, Independent Women's Law CenterModerator: Hon. David Stras, Judge, United States Court of Appeals, 8th Circuit--To register, click the link above.

In 1905, the U.S. Supreme Court decided Jacobson v. Massachusetts, upholding a state's ability to enforce compulsory vaccination laws pursuant to its police powers and for the protection of its citizens. This precedent has recently come under scrutiny for its possible overbreadth. Two distinguished experts join us to discuss and debate the holding of the case, its merits, its relevance today, and ultimately, whether it should be limited or overruled. Featuring: --Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston--Prof. Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government, University of Texas at Austin School of Law---This Zoom event is open to public registration at the link above.

With the Supreme Court about to hear two cases involving the use of race in admissions at Harvard and the University of North Carolina, what do Americans actually think about preferential treatment? Dr. Althea Nagai, Senior Research Fellow at the Center for Equal Opportunity (CEO), will present her analysis of recent data from the Pew Research Center on what Americans believe colleges should consider when deciding whom to admit. Her study focuses on the attitudes of some of the beneficiaries of affirmative action, based on a large sample of black and Hispanic respondents as well as Asians and whites. Joining Dr. Nagai on the panel discussion will be Theodore Johnson, Director of the Fellows Program at the Brennan Center for Justice, and moderator Linda Chavez, CEO Chair.Featuring:Dr. Althea Nagai, Senior Research Fellow, Center for Equal Opportunity (CEO)Theodore Johnson, Director, Fellows Program, Brennan Center for JusticeModerator: Linda Chavez, Chairman, Center for Equal Opportunity (CEO)Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Are state governors subject to the same separation of powers restrictions as the federal president?Expanding on the recent Regulatory Transparency Project panel discussion on emergency executive power during the pandemic, this event will feature experts engaging in a broader separation of powers discussion about the distinctions between the federal and state separation of powers doctrines, using California as an example.In a conversation moderated by Braden Boucek, David. A. Carrillo, Luke A. Wake, and John C. Yoo will explore those distinctions, examine how they affect the latitude and options state and federal executives have, and debate the extent to which federal separation of powers doctrines can or should be applied to the states through judicial interpretation.Featuring:David A. Carrillo, Lecturer in Residence and Executive Director, California Constitution Center, University of California, Berkeley, School of LawLuke A. Wake, Attorney, Pacific Legal FoundationJohn C. Yoo, Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; and Director, Public Law & Policy Program, University of California, Berkeley, School of Law[Moderator] Braden Boucek, Director of Litigation, Southeastern Legal FoundationVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

New York’s response to the Covid-19 pandemic has been widely criticized, triggered an FBI investigation, and repeatedly landed the state before the Supreme Court. The latest criticism comes coupled with litigation alleging that New York State’s Department of Health (NYHD) is illegally discriminating on the basis of race in administering antiviral medication for covid treatment. On December 27, 2021, the NYHD issued guidelines for the administration of the antivirals paxlovid and molnupiravir. Citing the short supply of both treatments, the NYHD directed that the drugs could only be administered to patients with Covid who also had “a medical condition or other factors that increase their risk for covid.” While New York’s guidelines link to the CDC’s “People with Certain Medical Conditions” page to describe “risk factors for severe illness,” New York specifically added consideration of race as a factor for prescription. The guidelines state: “Non-white race or Hispanic/Latino ethnicity should be considered a risk factor, as longstanding systemic health and social inequities have contributed to an increased risk of severe illness and death from Covid-19.”As a result, in some cases identically situated "whites" and non-white are ineligible or eligible for certain treatments. Although the NYHD disputes the characterization of their guidelines as impermissibly racially discriminatory, many lawsuits have been filed challenging the guidelines as impermissible and illegal race discrimination. The first of those lawsuits was filed by Professor William Jacobson of Cornell who joins us to discuss the pending litigation in New York and in other states across the country. Featuring:--Prof. William Jacobson, Clinical Professor of Law and Director of the Securities Law Clinic, Cornell Law School; President, Legal Insurrection ---To register, click the link above.

Internal tensions in the Supreme Court's standing doctrine have led to some unexpected fractures. Last term, in Transunion LLC v. Ramirez, the Court considered a class action arising from Transunion's errors in the processing and use of the plaintiffs' personal credit information. By a vote of 5-4, the Court held that, while Congress had created a cause of action that on its face let all of the class members sue, only those whose information was shared with third parties had sufficiently concrete injuries to establish standing. Justice Thomas joined the court's three more liberal justices in dissent, arguing that Congress's creation of a cause of action was sufficient and pointing out numerous inconsistencies in the Court's standing doctrine. Of particular note, Justice Thomas cited a provocative concurring opinion from the 11th Circuit's Judge Newsom, who argued that standing has no basis in the original meaning of Constitution and that courts should instead look at whether a congressionally created cause of action violates the Constitution's separation of powers. Judge Newsom's opinion, and both the majority and the dissent in Transunion, spent considerable time discussing how courts should approach citizen suits, which have always been on the outer edge of the Court's standing jurisprudence and which several justices have said raise other serious separation of powers concerns. This webinar will have a lively discussion among three leading experts about what the future may hold for citizen suits, standing doctrine, and the separation of powersFeaturing:--Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law--Prof. Robin Craig, Robert C. Packard Trustee Chair in Law, USC Gould School of Law--Jonathan Brightbill, Partner, Winston & Strawn LLP and former Acting Assistant Attorney General for the Environment & Natural Resources Division of the U.S. Department of Justice--Moderator: Michael Buschbacher, Counsel, Boyden Gray & Associates PLLC