U.S. v. Texas

Federalism & Separation of Powers Practice Group Teleforum Conference Call Thursday, February 11, 01:00 PMFederalist Society Teleforum Conference Call

All eyes are on the United States Supreme Court as it prepares to hear oral argument in U.S. v. Texas, which will examine the President's executive actions on immigration. In addition to complex questions about standing and administrative law, the Court has, on its own initiative, added a Take Care Clause question to the argument. Our experts will preview the oral argument, the major points to be made by both sides, and the stakes.


  • Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Prof. Kevin R. Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, University of California, Davis, School of Law

How “False” Must a Claim be under the False Claims Act? - Podcast

Litigation Practice Group Podcast
Shane B. Kelly, Stephen J. Obermeier January 28, 2016

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.


  • Shane B. Kelly, Associate, Wiley Rein LLP
  • Stephen J. Obermeier,Partner, Wiley Rein LLP

Article III Standing and the Texas Immigration Case - Podcast

Litigation Practice Group Podcast
Stephen I. Vladeck, Adam J. White January 14, 2016

The Supreme Court will soon decide whether to hear a challenge by Texas (and 25 other states) to President Obama’s deferred action immigration policy. The federal government, which lost below, is asking the Court to reverse both because it believes the policy is lawful and because it believes the states weren’t entitled to bring the suit in the first place—because they lacked “standing.” This Teleforum debate considered both who has the better of the standing argument in the Texas case, and, more generally, when states should (and should not be) allowed to challenge federal government policies in court.


  • Prof. Stephen I. Vladeck, Professor of Law, American University Washington College of Law
  • Adam J. White, Visiting Fellow, The Hoover Institute

When Enough is not Enough: Frank v. Poertner - Podcast

Litigation Practice Group Podcast
Theodore H. Frank January 11, 2016

In this class action case, counsel for the plaintiffs received over 94% of the total cash recovery provided for in settlement – while the attorneys received $5,680,000 in fees, the millions of class members realized only $344,850. Objector Ted Frank’s petition for cert in the U.S. Supreme Court is pending. The petition essentially asks whether such an award is fair, reasonable and adequate under the Federal Rules of Civil Procedure. What will this case mean for the future of cy pres and class action litigation?


  • Theodore H. Frank, Senior Attorney, Director of the Center for Class Action Fairness, Competitive Enterprise Institute