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Corporations, Securities & Antitrust

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  • Antitrust
  • Corporate Governance
  • International Business
  • Securities & Corporate Finance

Projects

Fifth Annual Executive Branch Review Conference

The Relationship between Congress and the Executive Branch
Ronald A. Cass, Neil Eggleston, Todd F. Gaziano, Sally Greenberg, Kathleen Grillo, Lisa Heinzerling, Grace Koh, Michael S. Lee, Abbott (Tad) Lipsky, James C. Miller, David M. McIntosh, Mike J. Rogers, David C. Vladeck, Adam J. White, Benjamin Wittes, M. Edward Whelan May 17, 2017

The Fifth Annual Executive Branch Review Conference will examine the changing and often convoluted relationship between the legislative and the executive branches in the United States government. This daylong conference will feature plenary panels, addresses, and breakout panels on topics such as “The Unitary Executive,” “Chevron Deference,” and “Congressional Oversight of Voting Rights.”

The Conference will begin with an opening address by Senator Mike Lee.

Consumer Financial Protection Bureau Update - April 2017

Financial Services & E-Commerce Practice Group Teleforum
Wayne A. Abernathy, Julius L. Loeser April 18, 2017

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee will provide an update on recent important activity at the Consumer Financial Protection Bureau (CFPB). The call will cover many interesting topics including an update of PHH’s D.C. Circuit U.S. Court of Appeals case against the CFPB, a recent Executive Order which appears to apply to the CFPB, congressional activity regarding the CFPB, the CFPB’s recent fines and other actions, and the CFPB’s (and Federal Reserve Board’s) Office of Inspector General (OIG) audit report entitled “The CFPB Can Strengthen Contract Award Controls and Administrative Processes.” 

Featuring:

  • Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association
  • Julius L. Loeser, Of Counsel, Winston & Strawn LLP

Kokesh v. SEC

Short video featuring Rachel Paulose
Rachel Kunjummen Paulose April 17, 2017

Is the SEC limited to five years if it wants to make a criminal defendant pay back money obtained illegally? Rachel Paulose, partner at DLA Piper, explains the dispute in Kokesh v. SEC. Charles Kokesh claims that a five-year statute of limitations applies, while the Securities and Exchange Commission maintains that illegally obtained money should be paid back regardless of how much time has passed. SCOTUS oral argument is April 18, 2017.

Criminal Regulatory Statutes: Is “Deliberate Indifference” Sufficient Mens Rea For A “Knowing" Violation? Case Update: Farha v. United States

Criminal Law & Procedure Practice Group Teleforum
Paul D. Kamenar, Jeff Lamken, John G. Malcolm February 14, 2017

Farha v. United States, currently pending on a petition for writ of certiorari to the U.S. Supreme Court, is a case study raising basic notions of due process, fair notice, the rule of lenity, mens rea, and whether administrative and civil remedies would be more appropriate.  What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute ended in the indictment, conviction, and prison sentences for the Wellcare executives for fraud.  

On appeal, where the case was captioned Clay v. United States, the U.S. Court of Appeals for the Eleventh Circuit upheld the convictions over the objections of the defendants that the jury instruction impermissibly allowed the jury to convict if the defendants were “deliberately indifferent” to the law’s requirement as opposed to finding a “knowing” violation as the statute requires.  The Supreme Court in 2011, in Global-Tech Appliances, a civil case involving patent infringement, held that "knowledge" cannot include "deliberate indifference" to show sufficient mens rea to establish infringement. Accordingly, the cert petition, filed by Seth Waxman of WilmerHale, seeks to have the Court rule that the jury instructions should require a higher mens rea standard, all the more so in a criminal case. 

This case is particularly important for all regulated industries, where there are numerous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement.

Featuring:

  • Paul Kamenar, Washington, D.C. Public Policy Attorney and Senior Fellow, Administrative Conference of the U.S.
  • Jeff Lamken, Partner, MoloLamken
  • ModeratorJohn G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

Labor Issues in the Sharing Economy

Short video on the Sharing Economy
February 09, 2017

The sharing economy is changing the nature of work, yet it doesn’t fit clearly within laws governing labor and employment. In this short documentary, policy experts, lawyers, and sharing economy workers weigh in on the debate over "contractors v. employees" and what kind of protections workers need in this new economy.

Reframing Financial Regulation: Enhancing Stability and Protecting Consumers

Financial Services & E-Commerce Practice Group Teleforum
Hester Peirce January 26, 2017

Reframing Financial Regulation: Enhancing Stability and Protecting Consumers, edited by Hester Peirce and Benjamin Klutsey, brings together a diverse set of authors to provide alternative ways to regulate different aspects of the financial system. The chapters embody approaches that rely less on centralized, top-down regulations and more on market discipline and oversight. The recently published book, which reflects a wide variety of viewpoints and approaches, seeks to initiate a lively conversation about how a thoughtfully regulated, market-based financial system can facilitate risk sharing, efficiently provide access to capital, and enable households to save for the future.

Senior Research Fellow and the Director of the Financial Markets Working Group at the Mercatus Center at George Mason University, Hester Peirce, will join us to discuss this new book. 

Featuring:

  • Hester Peirce, Senior Research Fellow and the Director of the Financial Markets Working Group at the Mercatus Center

Consumer Financial Protection Bureau Update - January 2017

Financial Services & E-Commerce Practice Group Teleforum
Wayne A. Abernathy, Julius L. Loeser January 25, 2017

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee will provide an update on recent important activity at the Consumer Financial Protection Bureau (CFPB). The discussion will cover a multitude of topics including Fair Lending Priorities in 2017, a new proposed CFPB arbitration rule, CFPB restitution fines imposed on Equifax Inc. and TransUnion Inc., the CFPB's recently released 2016 Annual Employee Survey, the CFPB's Diversity and Inclusion Strategic Plan for 2016-2020, the role of emotion in consumer protection law, and the potential impact of the new Administration on the Bureau.  

Featuring:

  • Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association
  • Julius L. Loeser, Of Counsel, Winston & Strawn LLP

 

Justice Scalia's Contributions to Antitrust Law - Audio/Video

2016 National Lawyers Convention
Frank H. Easterbrook, Deborah A. Garza, C. Scott Hemphill, Douglas H. Ginsburg November 23, 2016

In his confirmation hearing, Justice Scalia told the Senators that, as a law school student, he had never really understood antitrust law; later, he learned that he shouldn't have understood it, because it did not make any sense then. It should come as no surprise, that in his subsequent time on the Court, Justice Scalia strove to rectify that problem, and succeeded through clearly written majority decisions that changed the direction of jurisprudence on monopolization (U.S. v. Trinko) and class certification in massive antitrust and other business class actions (Wal-Mart v. Dukes, Comcast v. Behrens), and powerful dissents. As a modern intellectual leader of the "Chicago school" of economics, Justice Scalia played an important role in shaping the Court's approach to antitrust law and hence development of the law in the lower courts. It is a good time to consider the impact of his legacy, including how lasting those decisions will be, whether and how the course of antitrust jurisprudence could change and who will take his place in the Court on these issues.

This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Corporations, Securities & Antitrust: Justice Scalia's Contributions to Antitrust Law
1:45 p.m. – 3:15 p.m.
East Room

  • Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit
  • Ms. Deborah A. Garza, Partner, Covington & Burling LLP
  • Prof. C. Scott Hemphill, Professor of Law, New York University School of Law
  • Moderator: Hon. Douglas H. Ginsburg, U.S. Court of Appeals, District of Columbia Circuit

The Mayflower Hotel
Washington, DC

2016 National Lawyers Convention

The Jurisprudence and Legacy of Justice Scalia
November 17, 2016

The 2016 National Lawyers Convention is scheduled for Thursday, November 17 through Saturday, November 19 at the Mayflower Hotel in Washington, D.C. The topic of this year's convention is: The Jurisprudence and Legacy of Justice Scalia.

CFPB Ruled Structurally Unconstitutional: PHH v. CFPB

Financial Services & E-Commerce Practice Group Teleforum
Todd J. Zywicki, Thomas M. Hefferon October 24, 2016

The creation of the Consumer Financial Protection Bureau was one of the crown jewels in the Dodd-Frank Financial Reform legislation. The CFPB is unique in American constitutional history in that it deliberately combines a huge degree of regulatory power with minimal accountability to the democratic branches of government. Under Dodd-Frank, the CFPB is headed by a single director appointed for a five-year term and removable by the Presidentonly for cause. In addition, the CFPB draws its budget from outside the Congressional appropriations process, being directly funded by the Federal Reserve.

On October 11, the DC Circuit ruled in the case of PHH Mortgage v. Consumer Financial Protection Bureau. The ruling for the Court concluded that it was unconstitutional to create an independent agency headed by a single director removable only for cause. As a remedy, the court ordered the severance of the for cause removal provision, thereby rendering the head of the CFPB removable at-will by the President and converting the agency from an independent agency to an executive agency. In addition, the Court reversed the ruling of the CFPB's Director Richard Cordray on the facts of the immediate case, in which Director Cordray had increased the fine from $6 million (the amount imposed by an administrative judge) to $109 million. This teleforum will explore the reasoning of the PHH case and the implications for the CFPB and for the future of the administrative state.

Featuring:

  • Prof. Todd J. Zywicki, Foundation Professor of Law and Executive Director of the Law & Economics Center, Antonin Scalia School of Law, George Mason University

  • Thomas M. Hefferon, Partner, Goodwin Procter LLP