The Court has ruled today in two important cases,Matal v. Tam (aka "The Slants" copyright case) and Packingham v. North Carolina, which concerns a North Carolina law that restricts the access of convicted sex offenders to “commercial social networking” websites. Mr. Michael Huston and Mr. Ilya Shapiro joined us for this special Teleforum in which the holdings and reasoning of both cases were discussed.
Mr. Michael R. Huston, Associate Attorney, Gibson Dunn & Crutcher LLP
Mr. Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute
In a decision likely to shape not only future biosimilar litigation but the biosimilar industry generally, the U.S. Supreme Court on June 12, 2017 handed down its much-anticipated ruling in Amgen v. Sandoz.
In the first case interpreting the Biologics Price Competition and Innovation Act (BPCIA), the Court (J. Thomas) unanimously reversed the Court of Appeals for the Federal Circuit, holding that biosimilar makers need not wait for FDA approval before providing the reference product sponsor with 180-day notice of commercial marketing. The Court also held that the statute does not provide a federal injunctive cause of action to force biosimilar applicants to provide their FDA application to the reference sponsor, but remanded to the Federal Circuit to determine whether injunctive relief might be available to reference sponsors under state law. The decision raises intriguing questions of statutory construction and policy and is expected to speed market entry of biosimilars and increase competition.The Federalist Society’s uniquely qualified, expert panel discussed the decision and its implications for the industry and patent rights generally.
Prof. Gregory Dolin, Co-Director, Center for Medicine and Law, University of Baltimore School of Law
Prof. Erika Lietzan, Associate Professor of Law, University of Missouri School of Law
Microsoft v. Baker involved a class action lawsuit against the Microsoft Company by plaintiffs who alleged that during games on their Xbox video game console, the game disc would come loose and scratch the internal components of the device, permanently damaging the Xbox. Since only .4% of Xbox consoles experienced this issue, the district court determined that "a class action suit could not be certified and individuals in the suit would have to come forward on their own." The named plaintiffs voluntarily dismissed their claims with prejudice. The case was then appealed to the U.S. Court of Appeals for the Ninth Circuit where the court overturned the lower court's decision and held that the district court misapplied the law and abused its discretion in removing the class action allegations.
On Monday, June 12 the Supreme Court unanimously reversed the ruling of the Ninth Circuit and remanded the decision. Ted Frank of the Competitive Enterprise Institute joined us to discuss the holding and its significance.
Theodore H. Frank, Senior Attorney, Director, Center for Class Action Fairness, Competitive Enterprise Institute
The enactment of lengthy no-parole sentences and the atrophy of other statutory early release mechanisms has placed unusual demands on the clemency mechanism in recent years, notably in the federal system. Similarly, an increase in the number and severity of collateral penalties has made pardon the only way most people with a criminal record can pay their debt to society. As Enlightenment philosophers recognized, clemency was never intended to substitute for a well-functioning legal system. With all due respect to Alexander Hamilton, in today’s world it is questionable whether a politician is “a more eligible dispenser of the mercy of the government” than a court.
The American Law Institute recently approved a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC includes provisions intended to reduce the need for executiveclemency, in two ways. First, the MPC provides authority for courts to reduce prison sentences in situations where circumstances have fundamentally changed. Second, the MPC proposes a comprehensive scheme for managing the collateral consequences of conviction that makes courts the primary source of relief. Former U.S. Pardon Attorney Margaret Love, currently the Executive Director of the Collateral Consequences Resource Center, will discuss the merits and potential consequences of these proposed MPC reforms.
Margaret Love, Law Office of Margaret Love
Moderator: John Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation
To whom is the Federal Reserve accountable? Does the Fed's insistence on its "independence" mean it thinks the answer is: To no one? Who should oversee the results, successful or unsuccessful, of the Fed's actions? One answer was given by a former president of the New York Fed years ago: "The Congress which set us up has the authority and should review our actions at any time they want to, and in any way they want to." The CHOICE Act, recently passed by the House Financial Services Committee would in its Title X., "Fed Oversight Reform," create greater Fed accountability to the Congress.This Federalist Society Teleforum explored the bill's provisions and the issues involved.
Alex Pollock, Senior Fellow, R Street Institute
Norbert Michel, Senior Research Fellow, Financial Regulations and Monetary Policy, The Heritage Foundation