Criminal Law & Procedure Practice Group Podcast
On January 15, 2015, the U.S. Supreme Court granted certiorari in Robert F. McDonnell v. United States. The Court will review the public corruption convictions of former Virginia Governor Bob McDonnell to determine whether the definition of “official action” as used in the federal bribery statute, Hobbs Act, and honest-services fraud statute is limited to exercising actual governmental power or the threat or pressure to do so. If the definition is not so limited, the Court will also consider whether the Hobbs Act and honest-services fraud statute are unconstitutional—given that such a broad definition could include political activity protected by the First Amendment. This Teleforum will allow experts who have been involved in amicus briefs and analyzing the case to debate the positions articulated by Governor McDonnell and the U.S. Government as to the "official act" question.
Litigation Practice Group Podcast
- Brian D. Boone, Alston & Bird LLP
- Prof. Randall D. Eliason, George Washington University Law School
- Moderator: William J. Haun, Hunton & Williams LLP
If you do business with the federal government, when does violating a statute, regulation, or contract provision become fraud? This is the question facing the U.S. Supreme Court in Universal Health Services v. United States ex rel. Escobar, which examines the scope of the False Claims Act (FCA). The FCA provides for treble damages and civil fines for anyone submitting false claims for payment to the federal government. Violations of the FCA must involve a “false or fraudulent claim” or “a false record or statement material to a false or fraudulent claim.” Traditionally, the falsity element of an FCA claim required a “factual falsehood” (e.g., submitting a claim for payment for 10 computers when only 5 were delivered) or an express false certification (e.g., certifying to a lack of organizational conflicts of interest when such conflicts exist). But does submitting a claim for payment, by itself, represent to the government that all applicable legal requirements were followed such that failing to comply with those requirements renders the claims “false”? Circuit Courts have split on this question, and now the Supreme Court will decide.
This case has significant implications for anyone doing business with the federal government. If the Court recognizes a so-called “implied certification” theory of liability, it could substantially increase contractors’ exposure to the FCA’s punishing statutory regime.
2015 National Lawyers Convention
- Shane B. Kelly, Associate, Wiley Rein LLP
- Stephen J. Obermeier,Partner, Wiley Rein LLP
The Eighth Annual Rosenkranz Debate was held on November 14, 2015, during The Federalist Society's 2015 National Lawyers Convention. RESOLVED: The Constitution is designed for a moral and religious people and it's wholly unsuited for the government of any other.
Eighth Annual Rosenkranz Debate
4:00 p.m. – 5:15 p.m.
- Prof. Robert P. George, McCormick Professor of Jurisprudence, Princeton University
- Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law
- Moderator: Hon. William H. Pryor Jr., U.S. Court of Appeals, Eleventh Circuit
- Introduction: Mr. Eugene B. Meyer, President, The Federalsit Society
Mayflower Hotel 2015 National Lawyers Convention
The Supreme Court has instructed in clear terms that the duty of the Federal prosecutor in a criminal prosecution "is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). Yet the news pages are filled with examples of Federal prosecutorial overreach. In its term just ended, the Supreme Court reversed six of seven criminal convictions that reached it, several all involving some form of over criminalization that can lead to prosecutorial overreach. And large categories of prosecutorial overreach never reach the Supreme Court, from dozens of convictions of "insider trading" by non-insiders (now found not to be a crime by the Second Circuit); to civil forfeitures of property of legitimate small businesses never charged with a crime; to multi-billion dollar settlements of the thinnest of charges with large banks, pharmaceutical companies, and individuals that cannot take any risk of a criminal conviction; to what one jurist has described as an “epidemic of Brady violations abroad in the land."
The panel will explore whether prosecutorial overreach has become epidemic. It will also explore potential remedies ranging from reducing the number of crimes, to sentencing reform, plea bargain reform, civil forfeiture reform, and more. Finally, it will ask who should take action to control prosecutorial overreach? Should it be the state bars? Should the courts be more aggressive? Or, is the task primarily one for Congress? If so, what are the most promising avenues of reform?
Professional Responsibility: Prosecutors Run Amok?
11:00 a.m. – 12:30 p.m.
- Hon. Alex Kozinski, U.S. Court of Appeals, Ninth Circuit
- Mr. John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation
- Hon. George J. Terwilliger III, Partner, McGuireWoods LLP
- Ms. Darpana M. Sheth, Constitutional Litigator, Institute for Justice
- Moderator: Hon. Keith R. Blackwell, Associate Justice, Supreme Court of Georgia
- Introduction: Mr. John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP
The Mayflower Hotel Litigation Practice Group Podcast
In life, we are often judged by the company we keep. But is that fair when it comes to judging a lawyer by the clients he represents? Does it matter whether the attorney is so successful that she has her choice of clients, an abundance of whom are not unsympathetic or controversial, and can thrive professionally even if not representing unsympathetic clients? Can a lawyer reasonably argue that our legal system requires representation, that even the least sympathetic among us deserve their day in court, which implicitly means solid legal representation?
- Gene C. Schaerr, Principal, Schaerr Law Group
- Hon. Sarah L. Wilson, Partner, Covington & Burling LLP