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Litigation

Sanctioning (Government) Lawyers

Litigation and Professional Responsibilities & Legal Education Practice Groups Teleforum Tuesday, August 30, 02:00 PMFederalist Society Teleforum Conference Call

On May 19, 2016, the United States District Court for the Southern District of Texas entered a Memorandum Opinion and Order in which it found that lawyers from the United States Department of Justice violated their duty of candor in the course of their representation and imposed sanctions. The court initially required additional ethics training for all Justice Department attorneys practicing in 26 states for a period of five years. The Court concluded, in part, that “the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.” The Justice Department acknowledged that its attorneys made mistakes and misrepresentations to the court and opposing counsel, but contended that none were intentional, and agreed to some limited sanctions. Since then, the court has stayed its order.

What are the limits, if any, to Court sanctions for attorney conduct? Here to discuss these issues are Thomas H. Dupree Jr., who formerly served in the Department of Justice, and Richard Painter, whose experience includes service in the White House Counsel’s Office.

Featuring:

  • Mr. Thomas H. Dupree, Jr., Partner, Gibson Dunn
  • Prof. Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School

The Constitutionality of Independent Agencies: The CFPB - Podcast

Litigation Practice Group Podcast
Peter Conti-Brown, Gregory F. Jacob August 25, 2016

In April, the mortgage lender PHH Corporation challenged the constitutionality of the Consumer Financial Protection Bureau (CFPB) after being ordered by the CFPB to disgorge $109 million. PHH challenged the bureau’s legitimacy under Article II, and cited Free Enterprise Fund v. Public Company Accounting Oversight Board as relevant precedent, because PCA officers could be removed for cause, and then, only by officers of the SEC. Meanwhile, the CFPB cited Humphrey’s Executor v. United States, in which the Supreme Court upheld the constitutionality of the Federal Trade Commission Act, which allowed the president to remove an FTC commissioner only for cause. Professor Peter Conti-Brown of The Wharton School and Gregory Jacob, partner at O'Melveny & Myers LLP joined us to discuss the CFPB and the constitutionality of other independent agencies like it.

Featuring:

  • Mr. Peter Conti-Brown, Assistant Professor of Legal Studies and Business Ethics, The Wharton School
  • Mr. Gregory F. Jacob, Gregory F. Jacob Partner, O'Melveny & Myers LLP

Changing the Rules of Discovery - Podcast

Litigation Practice Group Podcast
Alexander R. Dahl, A. Benjamin Spencer August 19, 2016

A “requester pays” amendment to the Federal Rules of Civil Procedure (FRCP) would require that those seeking discovery pay for its costs, moving federal civil litigation away from the current “American rule” that requires all parties to bear their own litigation expenses, including the costs of responding to discovery requests. Supporters of “requester pays” argue that discovery requests can be so broad and costs can be so high that they become a disincentive to defend. Opponents claim that the amendment would make legal proceedings even more expensive for individual litigants, who would be unable to pay for the discovery necessary to make a case against larger and more powerful defendants. Here to discuss this idea are Alex Dahl of Brownstein Hyatt Farber Schreck LLP and Professor Benjamin Spencer of UVA School of Law.

Featuring:

  • Alexander R. Dahl, Shareholder, Brownstein Hyatt Farber Schreck
  • Prof. A. Benjamin Spencer, Earle K. Shawe Professor of Law, University of Virginia School of Law

Dollar General Corporation v. Mississippi Band of Choctaw Indians - Post-Decision SCOTUScast

SCOTUScast 8-18-16 featuring Zachary Price
Zachary Price August 18, 2016

On June 23, 2016, the Supreme Court decided Dollar General Corporation v. Mississippi Band of Choctaw Indians. This case concerns a dispute over tribal court jurisdiction relating to allegations that the non-Indian manager of a Dollar General store on Choctaw tribal land sexually molested an Indian minor who interned at the store. When the minor’s parents sought to hold Dolgencorp--the subsidiary that operated the store--vicariously liable for the manager’s conduct, Dolgencorp petitioned in federal district court for an injunction barring tribal court proceedings, on the grounds that the tribal court lacked jurisdiction. The district court denied relief, concluding that while tribal courts typically lack civil authority over the conduct of non-members on non-Indian land within a reservation, Dolgencorp’s situation fell within a “consensual relationship” exception to the rule. The U.S. Court of Appeals for the Fifth Circuit affirmed, and denied rehearing en banc over the dissent of five judges.

The question before the Supreme Court was whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against non-members, including as a means of regulating the conduct of non-members who enter into consensual relationships with a tribe or its members.

In a per curiam opinion, the judgement of the Fifth Circuit was affirmed by an equally divided court.

To discuss the case, we have Zachary Price, who is Associate Professor of Law at University of California, Hastings College of Law.

Searching: The Limits of Warrants Under ECPA - Podcast

Litigation and Criminal Law Practice Group Podcast
Jamil N. Jaffer, Jeffrey M. Harris August 09, 2016

The case of In the Matter of a Warrant to Search a Certain E-mail Account Controlled and Maintained by Microsoft Corporation stems from Microsoft's refusal to comply with a search warrant, which would have required Microsoft to hand over the contents of e-mails stored on a server in Ireland, but accessible from the company's U.S. headquarters. The U.S. government had applied for the warrant under Electronic Communications Privacy Act (ECPA). Reversing a lower court decision in favor of the government, the Second Circuit ruled that ECPA warrants did not have extraterritorial effect without express Congressional authorization.

Were the Second Circuit and Microsoft correct? Or was the government, which had contended that the data would be seized in the U.S rather than where it was stored, and therefore the warrant would not be exercised extraterritorially? Is the case a win for the protection of privacy? Will it help protect the relationships and agreements of U.S. entities with foreign nations? Will it be a huge burden to force the government to use the mutual legal assistance process when a provider opts to store the data at issue outside the U.S.?

Featuring:

  • Jeffrey M. Harris, Partner, Bancroft PLLC
  • Prof. Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, George Mason University School of Law and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee