SCOTUScast 4-22-15 featuring George Conway

On March 24, 2015, the Supreme Court decided Omnicare v. Laborers District Council Construction Industry Pension Fund. This case concerns Section 11 of the Securities Act of 1933, which authorizes suit by a purchaser of securities issued under a registration statement filed with the Securities and Exchange Commission if the registration statement “contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statement therein not misleading.”

The question here is whether a Section 11 plaintiff may plead that a statement of opinion was “untrue” merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit concluded in this case, or whether the plaintiff also must allege that the statement was subjectively false – requiring allegations that the speaker’s genuinely held opinion was different from the one expressed – as the Second, Third, and Ninth Circuits have held.

By a vote of 9-0 the Court vacated the judgment of the Sixth Circuit and remanded the case. In an opinion delivered by Justice Kagan, the Court held that a statement of opinion does not constitute an “untrue statement of . . . fact” for purposes of Section 11 simply because the stated opinion ultimately proves incorrect. Even so, the Court allowed that an omission could make an expression of opinion misleading if a reasonable investor would find that the facts omitted could not be squared with a fair reading of the registration statement as a whole.  The Sixth Circuit must reassess plaintiff’s claim on remand applying this standard, the Court explained.

Justice Kagan's opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, Alito, and Sotomayor. Justice Scalia filed an opinion concurring in part and concurring in the judgment.  Justice Thomas also filed an opinion concurring in the judgment.

To discuss the case, we have George Conway, who is a partner in the Litigation Department of Wachtell, Lipton, Rosen & Katz.

Environmental Law & Property Rights Practice Group Podcast

The Environmental Protection Agency and the Army Corps of Engineers are currently engaged in a controversial rulemaking to redefine its jurisdiction over bodies of water through a new definition of the “Waters of the United States” under the Clean Water Act. Some have criticized the proposed rule, claiming that it is an overreach that would give the federal government authority over huge areas of private and state land that are rarely even wet, while others have dismissed these concerns as overblown and have pointed out the benefits of clarifying what is currently a murky area of law. Our experts discussed the rulemaking and presented both sides of the argument.

  • Brent A. Fewell, Partner, Troutman Sanders LLP
  • Prof. Patrick A. Parenteau, Senior Counsel, Professor of Law, Vermont Law School
Federalism & Separation of Powers Practice Group Podcast

The still-unfolding story of America’s Constitution is a history of heroes and villains—the flawed visionaries who inspired and crafted liberty’s safeguards, and the shortsighted opportunists who defied them. Those stories are known by few today.

In Our Lost Constitution, Senator Mike Lee tells the dramatic, little-known stories behind six of the Constitution’s most indispensable provisions. He shows their rise. He shows their fall. And he makes vividly clear how nearly every abuse of federal power today is rooted in neglect of this Lost Constitution. Senator Mike Lee joined a Teleforum conference call for a special discussion with Federalist Society members regarding his new book.

  • Hon. Michael S. Lee, United States Senate
SCOTUScast 4-21-15 featuring Erik Jaffe

On March 23, 2015, the Supreme Court heard oral argument in Walker v. Texas Division, Sons of Confederate Veterans, Inc.

This cases concerns two First Amendment issues: The first is whether the content displayed on specialty license plates issued by the state is government speech that is immune from the First Amendment prohibition on viewpoint discrimination. The second question is whether Texas engaged in viewpoint discrimination when it rejected a license plate design with the image of the Confederate Flag, even though Texas had not issued license plate designs with a message or design contrary to that of the design proposed by the Sons of Confederate Veterans.

To discuss the case, we have Erik Jaffe, who is sole practitioner at Erik S. Jaffe, PC.

Criminal Law & Procedure Practice Group Podcast

The “residual clause” of the Armed Career Criminal Act requires a mandatory minimum fifteen-year sentence for anyone who has three prior “violent felony” convictions and is found to unlawfully possess a firearm. This clause has been addressed at the Supreme Court on numerous occasions in recent years, with Justice Scalia suggesting that it is unconstitutionally vague. The Supreme Court heard oral arguments in Johnson v. United States in November with no mention of the question, and after two months of silence re-scheduled the case for additional argument and instructed the parties to address this question directly. Many Court-watchers have suggested that there may now be five votes on the Court to declare the residual clause unconstitutionally vague.

  • Vikrant P. Reddy, Senior Policy Analyst, Center for Effective Justice, Texas Public Policy Foundation