Telecommunications & Electronic Media Practice Group Podcast
Ajit Pai was nominated to the Federal Communications Commission by President Barack Obama and on May 7, 2012 was confirmed unanimously by the United States Senate. He was interviewed by Gregory Sopkin of Wilkinson Barker Knauer, LLP for a Federalist Society Teleforum on current hot topics before the Commission. Topics included incentive auctions, federal spectrum, the IP transition, process reform, and media ownership. Commissioner Pai's goal in all of these areas is to create a regulatory environment in which competition and innovation will flourish, and he seeks to shape regulation that gives private firms the strongest incentive to raise and invest capital; to develop new products and services; and to compete in established and new markets. Specifically, Commissioner Pai is working to remove uncertainty that can deter businesses and investors from taking risks, to revisit outdated regulations, and to set clear, modernized rules for the road.
- Hon. Ajit V. Pai, Federal Communications Commission
- Moderator: Mr. Gregory E. Sopkin, Partner, Wilkinson, Barker, Knauer, LLP
[Listen now!] Telecommunications & Electronic Media Practice Group Podcast
Maureen K. Ohlhausen was nominated to the Federal Trade Commission by President Barack Obama and, on March 29, 2012, was confirmed unanimously by the United States Senate. She will be participate in a Teleforum on the FTC’s activities in the area of consumer privacy, including recent revisions to the Children’s Online Privacy Protection Act (COPPA) Rule.
The rise of sophisticated technologies over the last few years has allowed websites and other online entities to gather and distill large amounts of data about particular internet users. Although there are many efficiency gains from this activity, such as the development of new services and better-targeted advertising, people have also become concerned about possible invasions of privacy from monitoring an individual’s internet activity. Recognizing that children’s online privacy is an especially sensitive area, COPPA prohibits an operator of a website or online service that is directed to children, or who has actual knowledge that it is gathering personal information from a child, from collecting such information without providing notice of its data collection and obtaining verifiable parental consent for it. The FTC recently expanded the COPPA Rule’s coverage to include more types of personal information, such as IP addresses, and to expand the definition of an operator to reach entities that do not collect or use children’s information. Commissioner Ohlhausen addressed how she seeks to balance the FTC’s mandate under Section 5 of the FTC Act to protect consumers against unfair or deceptive acts with the legitimate rights of business to gather and use information for commercial purposes and why she dissented from the FTC’s revision to the COPPA Rule.
- Maureen Ohlhausen, Commissioner, Federal Trade Commission
- Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society
A Modest Proposal for Human Limitations on Cyberdiscovery Engage Volume 12, Issue 3, November 2011
Richard Esenberg January 11, 2012
I show my Civil Procedure students a video on electronically stored information (“ESI”) created by Jason Baron and Ralph Losey. The video, set to the type of pulsating electronic music normally heard prior to kickoff, sets forth a series of factoids about ESI. There will soon be more bytes of ESI than stars in the universe, it would take six million years to read each web page in the known universe, and we are awash in billions and trillions of e-mails, tweets, text messages and Google searches. The video refers to studies showing that most of this information is never produced—and often not even thought of—in the discovery process. It points out that the most common forms of retrieval, such as Boolean key word searches, find a relatively small percentage of “relevant” documents. For Baron and Losey, the “near future” is that litigants cannot “afford the whole truth,” but they suggest (with, I hope and suspect, tongues in cheek) that the “far future” is discovery conducted by artificial intelligence agents. The answer to the challenges of E-discovery, in other words, is the creation of E-lawyers... [Read more!]
An Attack on Separation of Powers and Federal Judicial Power? An Analysis of the Constitutionality of Section 18 of the America Invents Act Engage Volume 13, Issue 2, July 2012
In a patent “reexamination” proceeding, the Patent and Trademark Office (“PTO”) considers whether a patent it had previously issued is legally valid. The PTO’s statutory authority to reexamine, and invalidate, a patent is indifferent to whether the validity of the patent at issue had previously been challenged in federal court and upheld in a final decision. Appeals from PTO reexamination decisions are taken to the Court of Appeals for the Federal Circuit, the Article III court with essentially exclusive appellate jurisdiction over patent disputes. Last December, Circuit Judge Pauline Newman, a long-serving and highly respected Federal Circuit jurist, began an opinion in an otherwise run-of-the-mill patent reexamination appeal by posing the following queries: “This reexamination appeal raises a fundamental question—is a final adjudication [upholding a patent’s validity], after trial and decision in the district court, and appeal and final judgment in the Federal Circuit, truly final? Or is it an inconsequential detour along the administrative path to a contrary result?” ... [Read more!] Litigation Practice Group Podcast
In American Express Co. v. Italian Colors Restaurant, the Supreme Court considered an important question regarding the enforceability of arbitration agreements that contain class action waivers. In 2011, the Court held in AT&T Mobility LLC v. Concepcion that state law purporting to invalidate class action waivers in arbitration agreements is preempted by the Federal Arbitration Act. In Italian Colors, however, which involves a Sherman Act class action brought by retailers against American Express for alleged tying violations relating to its credit card agreements, the Second Circuit held that the “federal substantive law of arbitrability” invalidated the class action waiver provision in American Express’s arbitration agreements with merchants that accept its credit cards. The court of appeals reasoned that the class action waiver provision was invalid under federal law because it would “effectively preclude any action seeking to vindicate the statutory rights asserted by” the plaintiff class, given the prohibitive expense of trying to prove an antitrust claim on an individual basis. The Second Circuit concluded that Concepcion was inapposite, because there had been no showing there that “the practical effect of the enforcement would be to preclude [the plaintiff class’s] ability to vindicate their statutory rights.” The Supreme Court will now decide whether its Concepcion decision really did vindicate the ability of business defendants to enforce class action waivers in arbitration agreements, or instead whether plaintiffs can escape such provisions whenever they can show that individual litigation of federal claims would be prohibitively expensive.
Our expert, Thomas G. Hungar of Gibson, Dunn & Crutcher, attended the oral argument and then provided his analysis of the merits of the case and the possible outcomes in light of the oral arguments.
- Mr. Thomas G. Hungar, Partner, Gibson Dunn & Crutcher LLP
- Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society