Corporations, Securities & Antitrust

Oneok v. Learjet - Post-Decision SCOTUScast

SCOTUScast 4-29-15 featuring Daniel Lyons
Daniel Lyons April 29, 2015

On April 21, 2015, the Supreme Court decided Oneok, Inc. v. Learjet. The question in this case is whether the Natural Gas Act preempts state-law antitrust claims which challenge industry practices that directly affect the wholesale natural gas market when those claims are asserted by litigants who purchased gas in retail transactions.

In an opinion delivered by Justice Breyer, the Court held by a vote of 7-2 that although the Natural Gas Act occupies the field of matters relating to wholesale sales and transportation of natural gas in interstate commerce, the state law antitrust claims in this case may nevertheless proceed and are not preempted.  Justice Breyer’s opinion for the Court was joined in full by Justices Kennedy, Ginsburg, Alito, Sotomayor, and Kagan, and by Justice Thomas except as to Part I-A.  Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Scalia filed a dissenting opinion, which Chief Justice Roberts joined. The judgment of the Ninth Circuit was affirmed.

To discuss the case, we have Daniel Lyons, who is an Associate Professor of Law at the Boston College Law School.

Raisin Growers Back in the Supreme Court – Horne v. USDA - Podcast

Environmental Law & Property Rights Practice Group Podcast
John Elwood April 23, 2015

Under the Agricultural Marketing Agreement Act of 1937, the USDA has authority to regulate the sale of certain agricultural products, including California-grown raisins, through the use of “marketing orders.” The marketing order specific to California-grown raisins directs the Raisin Administrative Committee, a branch of the USDA, to establish a yearly raisin tonnage reserve requirement. Every year in February, raisin farmers are told what percentage of their crop is the “reserve requirement” they must turn over to the Committee. Failure to comply results in fines and penalties. In 2002 and 2003, the Horne family refused to comply and was fined over $700,000. In a 2013 decision, the United States Supreme Court unanimously held that regulated entities cannot be compelled to pay regulatory fines before they may contest their constitutionality, under the Fifth Amendment’s protection against uncompensated government seizure of private property (the Takings Clause). On remand in Horne, the federal district court and the Ninth Circuit Court of Appeals found that there was no taking. The Supreme Court heard oral arguments on April 22, 2015, and considered three questions: (1) Whether the government's “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property” applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government's discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.

  • John Elwood, Partner, Vinson & Elkins LLP

Consumer Financial Protection Bureau Update - April 2015 - Podcast

Financial Services & E-Commerce Practice Group Podcast
Julius L. Loeser, Todd J. Zywicki April 23, 2015

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee provided an update on recent important activity at the Consumer Financial Protection Bureau (CFPB).

  • Julius L. Loeser, Of Counsel, Winston & Strawn LLP
  • Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law

Shifting from District Court Action to Administrative Proceedings at the Securities and Exchange Commission - Podcast

Litigation and Corporations, Securities, and Antitrust Practice Groups Podcast
Matthew T. Martens April 21, 2015

Over the course of the last year, various SEC officials have stated publicly that the agency intends to bring more of its litigated enforcement cases in administrative proceedings rather than in federal district court. The SEC points to the recent expansion of its authority under Dodd-Frank to bring such administrative proceedings. The defense bar has responded by filing lawsuits seeking to block these administrative proceedings and force the agency to bring any enforcement action in federal court. Commentators have also written op-eds and given speeches criticizing the agency's approach as misguided policy. And recently, Congress has weighed in by questioning SEC officials about this new approach during oversight hearings. Matthew Martens (a securities enforcement partner at WilmerHale and the former SEC Chief Litigation Counsel) discussed these recent developments, including a review of the constitutional arguments the defense bar has raised to administrative proceedings, the procedural differences between administrative proceedings and district court actions, and the tactical challenges that administrative proceedings present to potential defendants.

  • Matthew T. Martens, Partner, WilmerHale

“I Object!”: Class Action Lawsuit Settlements - Podcast

Litigation Practice Group Podcast
Jonathan R. Macey, Gerald Walpin April 01, 2015

Are shareholder lawsuits, filed in opposition to proposed corporate mergers or asset acquisitions, on the rise and, even if so, does that indicate a problem? Does the fact that most such lawsuits are quickly settled indicate they have underlying merit? Who are the winners and losers in such lawsuits, and are the interest of shareholders generally served by such lawsuits? How are attorney’s fees calculated? Assuming something is amiss, is there a remedy? Is the opportunity for intervention by an objector useful?

  • Prof. Jonathan R. Macey, Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law, Yale Law School
  • Hon. Gerald Walpin, former Inspector General, Corporation for National and Community Service, former Chief of Prosecutions, Office of the United States Attorney, Southern District of New York