On Friday, September 15 Judge Harry Leinenweber of the Northern District of Illinois granted a preliminary injunction against the federal government’s enforcement of a new Justice Department requirement tied to federal funding. The new Byrne Justice Assistant Grants require sanctuary cities that want federal funding to cooperate with federal immigration officials and notify them before illegal immigrants are going to be released from jail. Dr. John Eastman of Chapman University will join us to discuss the significance of the ruling and the future of the litigation.
On June 27, the European Commission issued the long awaited opinion in its competition case against Google. The Commission held that Google had abused its dominant position as an Internet search engine by promoting its own comparison shopping service in search results and demoting those of competitors. In addition to imposing a fine of €2.42 billion ($2.7 billion) – the largest fine the E.U. has ever levied in an abuse of dominance case – the Commission ordered Google to correct the unlawful conduct within 90 days or face penalty payments up to 5% of the company’s average daily worldwide turnover. This conduct component of the remedy potentially places the company under Commission oversight for years to come. In addition, Google is likely to face related civil actions in individual Member States brought by competitors – aided by the new E.U. Directive on Antitrust Damages Actions – alleging that their business has been hurt by Google’s search practices.
The Commission’s view of the case is in stark contrast to that of U.S. antitrust enforcers who, after thoroughly investigating much the same conduct, elected to take no action. What does the decision mean for the future of antitrust enforcement on both sides of the Atlantic? Does it suggest a move toward more aggressive enforcement in area of single firm conduct, particular in the tech sector? Is the Commission’s approach a new one or does it reflect the re-emergence of “essential facilities” theories? Are U.S. and European antitrust enforcers now headed in different directions generally or is this case an outlier? Will the E.U.'s actions embolden other countries around the world?
In 1977 in Abood v. Detroit Board of Education, the Supreme Court ruled that public employees, including school teachers, could legally be required to pay a fee if they refuse to join a public-sector union. According to the Detroit Board of Education, the fee was necessary to off-set the costs the union incurred while bargaining on behalf of union and non-union members alike.
A similar case came to the Supreme Court in 2014, but the Supreme Court did not answer the primary question of Abood, instead ruling that the public employees in question were not actually public employees. Last year, the Supreme Court was left in deadlock in a similar case on the same issue after Justice Scalia’s passing.
Janus v. AFSCME, brought by an employee of the Illinois Department of Healthcare and Family Services who does not believe he should be legally obliged to join a union, is pending cert in the Supreme Court. William Messenger, Staff Attorney at the National Right to Work Foundation, joined us to discuss the probability of Janus being heard at the Court and what that could mean for the future of public-sector employees and unions.
Some antitrust lawyers often say the federal government’s decisions about which mergers to challenge, which monopolists to rein in, and which price-fixers to send to jail are relatively consistent regardless of who occupies the White House. But has federal antitrust enforcement really been entirely apolitical, based on economics, and divorced from other issues such as trade, job creation, and national security? Should it be? A panel of distinguished practitioners and former top government officials from both parties discussed these issues in our Teleforum, which was especially timely given calls by Senate Democrats for increased antitrust enforcement as part of “A Better Deal” and the increasing use of competition law by foreign governments against U.S. companies.
Major American corporations are pressuring their outside law firms to meet diversity goals both firm-wide and in the legal teams assigned to the company’s work. For example, Facebook announced this year that the law firm teams working on its matters must consist of at least 33 percent women and minorities. This pressure has resulted in the widespread use of race and gender preferences in hiring, promotion, and work assignment decisions by America’s premier law firms. Are these preferences legal under Title VII of the 1964 Civil Rights Act and 42 U.S.C. § 1981? Are they good policy? Curt Levey, a constitutional law attorney who has worked on several affirmative action cases – including the University of Michigan cases (Grutter and Gratz) – joined us to analyze the arguments on both sides of these questions.
On February 22, 2017, the Supreme Court decided Fry v. Napoleon Community Schools, a dispute involving the Individuals with Disabilities Education Act (IDEA), which in exchange for federal funding requires that states provide a “free appropriate public education” to children with certain disabilities. E.F., a child who has a severe form of cerebral palsy, was assisted in various daily activities by her service dog Wonder. Officials at Ezra Eby Elementary School, however, refused to allow Wonder to join E.F. in kindergarten, so her parents (the Frys) proceeded to homeschool her instead. They also filed a complaint with the U.S. Department of Education’s Office of Civil Rights (OCR), alleging that the exclusion of E.F.’s service dog violated federal disabilities laws, including Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act. OCR sided with the Frys and Ezra Eby relented. Concerned about possible resentment from Ezra Eby officials, however, the Frys instead enrolled E.F. in a different elementary school that had welcomed Wonder. The Frys also filed suit against Ezra Eby’s local and regional school districts (and principal) in federal district court, seeking declaratory and monetary relief for the alleged violations of Title II and section 504. The District Court dismissed the suit on the grounds that the Frys had failed first to exhaust administrative procedures available under the IDEA, as required by section 1415(l) of that law. A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed, concluding that section 1415(l)’s exhaustion requirement applies whenever the plaintiff’s alleged harms are “educational” in nature.
The Supreme Court, however, granted certiorari to address confusion in the courts of appeals as to the scope of section 1415(l)’s exhaustion requirement. By a vote of 8-0, the Court vacated the judgment of the Sixth Circuit and remanded the case. In an opinion delivered by Justice Kagan, the Court held that exhaustion of the administrative procedures established by the IDEA is unnecessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee of a “free appropriate public education.” The Court then remanded the case to the Sixth Circuit for application of that standard to the Frys’ complaint in the first instance: is their complaint fundamentally about denial of a free appropriate public education, or about something else? Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Alito filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined.
To discuss the case, we have Daniel Woodring, principal at Woodring Law Firm.