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FedSoc Forums — Business
FedSoc Forums

*This series was formerly known as Teleforums.

FedSoc Forums is a virtual discussion series dedicated to providing expert analysis and intellectual commentary on today’s most pressing legal and policy issues. Produced by The Federalist Society’s Practice Groups, FedSoc Forum strives to create balanced conversations in various formats, such as monologues, debates, or panel discussions. In addition to regular episodes, FedSoc Forum features special content covering specific topics in the legal world, such as:

Courthouse Steps: A series of rapid response discussions breaking down all the latest SCOTUS cases after oral argument or final decision

A Seat at the Sitting: A monthly series that runs during the Court’s term featuring a panel of constitutional experts discussing the Supreme Court’s upcoming docket sitting by sitting

Litigation Update: A series that provides the latest updates in important ongoing cases from all levels of government

The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Latest Episodes:

Courthouse Steps Oral Argument: Delligatti v. United States Nov 26, 2024

Show notes

Delligatti v. United States concerns whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.
Known by some as the "non-violent murder case" Delligatti ties into a larger conversation on the way "violent"/"use-of-force" crimes are defined categorically rather than on a solely case-by-case basis.
Oral Argument was heard on November 12, 2024.
Join us for this Courthouse Steps program where we break down and analyze OA and the potential outcomes of this case.
Featuring:
Robert K. McBride, Partner, Taft Stettinius & Hollister

Time for a Checkup: Evaluating the Withdrawal of the Health Care Antitrust Guidelines Nov 26, 2024

Show notes

In 1996, the FTC and DOJ issued Statements of Antitrust Enforcement Policy in Health Care. The statements addressed important topics, such as hospital mergers, information sharing, joint purchasing, and provider joint ventures. The DOJ withdrew the guidelines in February 2023, and the FTC followed in July. Some healthcare companies – and businesses in other sectors – that have established relationships in reliance on these statements are concerned as to whether long-running arrangements should be modified or terminated. This panel will discuss their perspectives on the withdrawal of the statements on future initiatives, and what previous arrangements may be at risk.
Featuring:
John Carroll, Partner in the Antitrust & Competition Practice Group, Sheppard Mullin
Richard Feinstein, Partner, Boies Schiller Flexner LLP, Former Director of the Bureau of Competition at the Federal Trade Commission
Laurel Kilgour, Research Manager, American Economic Liberties Project
Barry Nigro, Partner, Global Chair, Antitrust and Competition, Fried Frank
Prof. Barak Richman, Alexander Hamilton Professor of Business Law, George Washington University Law School
Moderator: Adam Biegel, Partner, Co-chair of the Litigation & Trial Practice Group, Alston & Bird
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Does Jarkesy Doom the Preserve Access to Affordable Generics and Biosimilars Act? Nov 26, 2024

Show notes

Reducing the cost of prescription drugs has been a bipartisan priority for years. One recent effort is the Preserve Access to Affordadble Generics and Biosimilars Act (S. 142), sponsored by Sen. Klobuchar with the support of Sen. Grassley and others. This bill would give the FTC new authority to investigate settlements between branded and generic drug companies that delay generic/biosimilar market entry and are deemed anticompetitive. The bill proposes allowing the FTC to make factual findings and liability determinations that the district court applies when computing damages. Our expert panel will discuss whether this bifurcated administrative/judicial arrangement can be squared with SEC v. Jarkesy and more broadly discuss issues around patent settlements in the bio/pharma space.
Featuring:
Matthew S. Hellman, Partner, Jenner & Block
William M. Jay, Partner, Appellate & Supreme Court Litigation, Goodwin Procter LLP
Prof. Emily Michiko Morris, David L. Brennan Endowed Chair, Associate Professor, and Associate Director of the Center for Intellectual Property Law & Technology, The University of Akron School of Law
Matthew D. Rowen, Partner, Clement & Murphy PLLC
Moderator: Brian Pandya, Partner, Duane Morris LLP
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Is AI Woke, in What Ways, and Should We Worry? Nov 25, 2024

Show notes

Discussions of the dangers of Artificial Intelligence (AI) have long included concerns about AI systems’ potential to discriminate against racial minorities, women, and other groups said to be disadvantaged. But more recently, there have been increasing concerns about the dangers of Woke AI. Because generative AI models learn from large amounts of real-world data, which is primarily gleaned from internet content and thus tends to reflect dominant cultural views, is some degree of political bias in these models inevitable? If not, what can be done to avoid such bias?
Increasingly, politicians and other policymakers are proposing laws, regulations, and guidelines aimed at preventing bias against minority groups in AI systems. Do we need similar laws to protect against the biases of Woke AI and if so, what should those laws look like?
Please join us as an expert panel discusses these questions and more.
Featuring:
Prof. Vincent Conitzer, Professor of Computer Science & Director, Foundations of Cooperative AI Lab (FOCAL), Carnegie Mellon University
Nicholas P. Garcia, Senior Policy Counsel, Public Knowledge
Curt Levey, President, Committee for Justice
(Moderator) Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law

Litigation Update: Tennessee v. Cardona Nov 25, 2024

Show notes

Tennessee v. Cardona concerns the Biden Administration’s recent revisions to regulations under Title IX.
Particularly at issue are those provisions that redefine the term "sex" to include "gender identity" for purposes of the regulation. Six states, including Tennessee, along with an association of Christian educators and a female high-school student sued, alleging the regulation as amended threatened student privacy, safety, and free speech." They also sought an injunction to stop the full rule from going into effect based on the immediate and irreparable harm they argued it would cause. The District Court granted an injunction and the government’s request to stay the injunction was granted by the Sixth Circuit. The Supreme Court also denied the government’s application for a stay of the injunction. The case is now being argued on the merits.
Join us for a litigation update on this important case.
Featuring:
Whitney D. Hermandorfer, Director of Strategic Litigation Unit, Office of the Tennessee Attorney General
(Moderator) Samuel D. Adkisson, Associate, Cooper & Kirk, PLLC

Litigation Update: Smith v. City of Atlantic City Nov 19, 2024

Show notes

The Atlantic City Fire Department requires all personnel who respond to fires or other emergencies to follow the proper use of an air mask when exposed to hazardous air. To ensure a proper fit, employees are prohibited from growing facial hair that could interfere with the mask seal. Plaintiff, Pastor Alexander Smith requested a religious accommodation to wear a short beard, arguing that growing the beard was an exercise of his faith and that wearing the mask was not part of his technician role in the department. This request was denied, citing safety concerns, prompting Smith to pursue legal action, alleging First Amendment, Equal Protection, and Title VII violations. However, the District Court of New Jersey ruled in favor of the fire department.
Together, the Harvard Religious Freedom Clinic and First Liberty Institute are appealing his case to the Third Circuit, with oral argument on October 30. Join Kayla Toney, who is arguing the case, and Katie Mahoney, Clinical Instructional Fellow at the Harvard Religious Freedom Clinic, as they break down the argument.
Featuring:
Kayla Toney, Associate Counsel, First Liberty Institute
(Moderator) Kathryn Mahoney, Clinical Instructional Fellow, Religious Freedom Clinic, Harvard Law School

Courthouse Steps Oral Argument: E.M.D. Sales, Inc. v. Carrera Nov 19, 2024

Show notes

E.M.D. Sales, Inc. v. Carrera concerns what standard the court should apply in cases of exceptions to the Fair Labor Standards Act. This act governs such limitations as hours worked, overtime pay, and working conditions across the United States. Several provisions within it exempt certain industries from some requirements, and this case deals with the burden of proof on a corporation to prove that an employee should be exempt from these rules.
The plaintiffs in this case are two employees of a food distribution company, who sued for overtime benefits citing the Fair Labor Standards Act. The company argued that their positions were those of salesmen, who are normally exempted from overtime pay rules. The plaintiffs allege that making sales was a secondary part of their numerous responsibilities that were not overtime exempt. The district court agreed that E.M.D failed to prove a sales exemption, and the Fourth Circut Court of Appeals affirmed.
Currently, the case is before the Supreme Court, with oral arguments on November 5th. Join Michael O'Neill, Vice President of Legal Affairs at Landmark Legal Foundation, and Cheryl Stanton, Chief Legal and Government Affairs Officer at BrightStar Care, as they review oral arguments and discuss this case and its implications.
Featuring:
Michael J. O'Neill, Vice President of Legal Affairs, Landmark Legal Foundation
(Moderator) Cheryl M. Stanton, Chief Legal and Government Affairs Officer, BrightStar Care

Litigation Update: Chiles v. Salazar Nov 04, 2024

Show notes

Chiles v. Salazar arises from a challenge to a Colorado law limiting therapists’ speech when counseling gay and transgender individuals. The Minor Conversion Therapy Law (MCTL) prevents licensed mental health professionals from providing any practice or treatment that “attempts or purports to change an individual’s sexual orientation or gender identity including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” Noncompliance could lead to fines, suspensions, or removals of licenses. Kaley Chiles, a professional counselor challenges this law, explaining that she does not necessarily seek to change patients’ sexual orientations but rather assist them when they seek help and counsel due to unwanted attractions. Chiles is a practicing Christian and works with clients seeking to be guided through Christian principles. She claims that MCTL violates her First Amendment rights to freedom of speech and free exercise of religion.
In September 2024, the Tenth Circuit Court of Appeals sided against Ms. Chiles, holding that MCTL does not unlawfully abridge what she can say to her clients. Join us for a discussion of this case, Colorado’s limits on therapist speech, and the larger implications for freedom of speech and religion.
Featuring:
Cody Barnett, Legal Counsel, Alliance Defending Freedom
(Moderator) Tessa E. Shurr, Committee Staff, U.S. House of Representatives

A Seat at the Sitting - November 2024 Oct 31, 2024

Show notes

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.
Wisconsin Bell v. U.S., (November 4) - Telecommunications; Whether reimbursement requests submitted to the Federal Communications Commission's E-rate program are “claims” under the False Claims Act.
Advocate Christ Medical Center v. Becerra, (November 5) - Medicare; Whether the phrase “entitled ... to benefits,” used twice in the same sentence of the Medicare Act, means the same thing for Medicare part A and Supplemental Social Security benefits, such that it includes all who meet basic program eligibility criteria, whether or not benefits are actually received.
E.M.D. Sales v. Carrera, (November 5) - Labor & Employment; Whether the burden of proof that employers must satisfy to demonstrate the applicability of a Fair Labor Standards Act exemption is a mere preponderance of the evidence or clear and convincing evidence.
Facebook v. Amalgamated Bank, (November 6) - Corporations; Whether risk disclosures are false or misleading when they do not disclose that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm.
Velazquez v. Garland, (November 12) - International and National Security; Whether, when a noncitizen's voluntary-departure period ends on a weekend or public holiday, a motion to reopen filed the next business day is sufficient to avoid the penalties for failure to depart under 8 U.S.C. § 1229c(d)(1).
Delligatti v. U.S., (November 12) - Criminal Law & Procedure; Issue(s): Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.
NVIDIA Corp. v. E. Ohman J:or Fonder AB, (November 13) - Securities; (1) Whether plaintiffs seeking to allege scienter under the Private Securities Litigation Reform Act based on allegations about internal company documents must plead with particularity the contents of those documents; and (2) whether plaintiffs can satisfy the Act's falsity requirement by relying on an expert opinion to substitute for particularized allegations of fact.
Featuring:
Tyler S. Badgley, Senior Counsel, U.S. Chamber Litigation Center
Karen Harned, President, Harned Strategies LLC
Robert S. Peck, President, Center for Constitutional Litigation
Collin White, Of Counsel, Kellogg Hansen
(Moderator) Sarah Child, Attorney, Jackson Lewis

Competition and Consumer Banking: Bank Mergers, Credit Cards, and the Capital One-Discover Deal Oct 30, 2024

Show notes

In September, the Department of Justice announced that it would withdraw its 1995 bank merger guidelines and apply its 2023 merger guidelines for all industries, a move that some have interpreted as signaling stricter review of bank mergers. At the same time, Congress is considering the “Credit Card Competition Act,” which purports to promote competition in the credit card network space. Join us for a discussion of these topics and their implications for consumers, competition, and the economy as well as Capital One’s proposed acquisition of Discover.
Featuring:
Prof. Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
Sen. Patrick Toomey, Former United States Senator (PA), Ranking Member of the Senate Committee on Banking
Dr. Diana Moss, Vice President and Director of Competition Policy, Progressive Policy Institute
Moderator: Jelena McWilliams, Managing Partner and Head of the Financial Institutions Group, Cravath, Swaine, & Moore Washington, D.C. office, Former Chairman of the Federal Deposit Insurance Corporation (FDIC)
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