1. JD Supra Morning Brief: Dodgeball, Robosigning, Guinea Pigs, The Donald

    Can’t decide what to wear? If it helps, the JD Supra Morning Brief goes well with just about anything:

    Interesting look at the Supreme Court first-sale doctrine ruling, from the lawyer who convinced the justices that it’s OK to resell any book, regardless of where it’s made (Bloomberg Law) 

    French, Italian, British, German, Spanish, and Dutch data protection authorities agree: Google’s privacy policy isn’t what it should be… (Proskauer) 

    Dodgeball and other “human targeting” games eliminated from a New Hampshire school district (Cullen & Dykman) 

    Are we all a guilty of a little “robosigning” from time to time? (Ifrah Law) 

    What does it mean to cooperate with an SEC or a DOJ investigation? And what are the benefits? (Morrison & Foerster) 

    Happy birthday, JOBS Act! (Leonard, Street and Deinard) 

    What does the SEC’s Division of Corporation Finance look for in cybersecurity disclosures of public companies? Let’s ask ‘em… (Mintz Levin) 

    Bill Maher trumps The Donald: Donald Trump dismisses his unwinnable breach-of-contract lawsuit against the comedian (Greenberg Glusker) 

    Student sues university over right to keep a guinea pig in her dorm room, and other higher education legal news (Saul Ewing) 

    What to do with employees who use – or misuse – social media? (Pullman & Comley) 

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    Find additional law updates on Twitter: @JDSupraBuzz»

  2. Same-Sex Marriage Goes Before the Supreme Court: What to Look For

    [Link: Viewer’s Guide to Gay Marriage Oral Arguments - Bloomberg Law] 

    On March 26 and 27, 2013, the Supreme Court will hear oral arguments in two lawsuits that could change the same-sex marriage landscape across the country. In the above video, Bloomberg Law’s Lee Pacchia speaks with attorney Tom Goldstein – who has argued 28 cases before the high court and runs the popular SCOTUSBlog – about what to look for in the historic debates. Key takeaways:

    On the suits before the court:

    • The Proposition 8 case asks the court to decide a really fundamental question about whether there’s a right to gay marriage. The Defense of Marriage Act case the next day challenges the constitutionality of a federal law that says federal benefits only go to heterosexual marriages.

    On the possibility of no decision at all:

    • “It’s definitely a possibility if the court can’t come to a majority – they have off-ramps - … the justices in either case could decide ‘we don’t have the power to decide those issues.’ They could say that the parties in front of them are the wrong ones… It’s clear that they have their finger on the trigger of deciding either the big question or deciding they actually don’t want to have anything to do with it.”

    On the justices to watch:

    • “Justice Kennedy [is] the ideological center of the court, particularly on this issue… On gay marriage Justice Kennedy really has been the pivot for some time now. He has been actually a leading advocate for recognizing claims of discrimination by homosexuals, and so if they plaintiffs … can persuade Justice Kennedy, then they have probably won their case.”
    • “Justice Kagan … is the tactically savviest, so if you’re talking about the oral arguments, you really want to listen to the direction that she pushes the plaintiffs in the cases because that’s the path that she thinks could lead to victory, and she’s just incredibly knowledgeable about how to get to five votes in the Supreme Court.”
    • “I would say Chief Justice [Roberts], on the right … is probably the most the likely … to recognize some form of right related to same-sex marriage… But he’s very difficult to read, he’s incredibly savvy about asking questions of both sides so it’s really often the case that we come out of an oral arguments … we just don’t know where he’s at.”

    On the ultimate outcome of the cases:

    • “I think it’s an incredibly difficult call. The country has clearly moved, incredibly quickly, in favor of recognizing that there should be equal treatment for same-sex and opposite-sex marriages. But the issue is that the Supreme Court moves much more slowly than the rest of the country, and it’s conservative both in its ideology and in its disposition: it doesn’t like to move too fast. So, to be honest, I think these cases are too close to call.”

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    See also: Inside the Supreme Court: A Twitter Recap of Same-Sex Marriage Oral Arguments

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    Find additional legal commentary and analysis on Same-Sex Marriage at JD Supra Law News»

  3. Obamacare Ruled Constitutional

    [Link: Goldstein: What Conservatives Won in the Health Care Case - Bloomberg Law]

    On June 28, 2012, the Supreme Court ruled that the Patient Protection and Affordable Care Act is constitutional, upholding essentially all provisions of the health care reform law. 

    Our first analysis of the historic ruling came from law firm Constangy, Brooks & Smith LLP:

    “In one of the most anticipated decisions in decades, this morning the U.S. Supreme Court held that the Patient Protection and Affordable Care Act of 2010 is constitutional.  The Court upheld virtually every part of it.  The most controversial and discussed aspect of the law, the ‘individual mandate’ to purchase health insurance or pay an annual penalty, survived even though many observers believed that the court would strike it down.  The Court’s rationale:  the penalty is itself a tax and therefore within the power of Congress to impose. 

    The Supreme Court views the individual mandate to purchase insurance as a tax, which it upheld as constitutional.

    Chief Justice John Roberts authored the majority opinion, and the vote was a narrow 5-4 in favor of the Act.  Justice Anthony Kennedy wrote the dissenting opinion in which he states that four of the nine justices would have struck down the law in its entirety… 

    The effect of the Court’s decision:  all existing provisions of the Act, such as the coverage of adult children up to age 26 and the prohibitions on lifetime benefit limits, remain in effect.  More importantly, the penalties on larger employers for failing to provide minimum essential coverage and availability of coverage through government-sponsored exchanges will become effective as scheduled, on January 1, 2014.”

    One aspect of the law will have to be rewritten, however. Law firm Franczek Radelet:

    “… the Court did find one part of the law’s Medicaid expansion rules to be unconstitutional. Under the law as written, the federal government has the power to withhold state Medicaid funds if a state does not comply with the new Medicaid expansion rules. The Court held, however, that it is unconstitutional for the federal government to withhold existing Medicaid funding for a state’s failure to comply with the new expansion rules.”

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    Read the updates:

    • Supreme Court: “Constitutional!” Health Care Reform Law Survives - Constangy, Brooks & Smith, LLP 

    • Supreme Court Upholds Federal Health Care Reform Law - Franczek Radelet P.C.

    • [Audio] Goldstein: What Conservatives Won in the Health Care Case - Bloomberg Law

    • Supreme Court Upholds Health Care Reform Law - Ford & Harrison LLP

    • U.S. Supreme Court Upholds Health Care Act - Loeb & Loeb LLP

    • Supreme Court Upholds Individual Mandate in the Affordable Care Act, but Medicaid Expansion is in Question - Sheppard Mullin Richter & Hampton LLP 

    • Supreme Court Rules on Affordable Care Act - Ober|Kaler 

    • Biosimilar Developers Can Breathe a Sigh of Relief - Dechert LLP 

    • Obamacare Ruled Constitutional: What It Means for You 

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    Read the Supreme Court decision: 

    • National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al.

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    Check back during the day, we’ll be adding additional legal commentary and analysis as it comes in. We’re expecting video shortly.

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    Also follow the news on Twitter via @JDSupra and @HealthLaw

  4. Health Care Reform: Everything You Need to Know About the Supreme Court Case in One Post

    Today the United States Supreme Court began hearing arguments to do with President Obama’s healthcare law. The case (one of the most important in years) will decide the fate of Obama’s Patient Protection and Affordable Care Act - aka Health Care Reform.

    For your easy reference, collected in one post, here’s a look at the key issues before the high court:

    1. Overview: The Health Care Reform Case In 90 Seconds

    Start here, with a quick overview of the issues before SCOTUS, from Bloomberg Law. [Link: Health Care Cases in 90 Seconds]

    In a minute and a half, learn the issues, the arguments, the implications of either outcome.

    2. In-Depth: What’s Under Review?

    Last fall we put together a roundup of legal commentary after SCOTUS announced it would be reviewing the constitutionality of PPACA:

    Jump to US Supreme Court to Rule on Health Care Reform Law for an overview of what will be under review by the high court, a history of the lawsuits, and an early look at the constitutionality question of “individual mandate.” A few of the advisories from that post:

    Next, see Health Care Reform: 5 Legal Questions that Get to the Heart of the Debate, a collection of five video interviews (also from Bloomberg Law) addressing different aspects of the Health Care debate. Taken together, the videos offer a great perspective on what’s at stake in this case. One example:

    [Link: Can Congress Force Individuals to Buy Insurance?]

    3. How Might the Supreme Court Rule?

    In Obama Health Care Reform: How Will The Supreme Court Rule? we highlighted commentary and analysis that tries to answer this question. See for example Several Scenarios: The Patient Protection and Affordable Care Act, the Supreme Court, and the 2012 Elections - What Does This Mean For Employers? (by K&L Gates). Included in this nine page summary of the Obamacare case:

    “If Republicans maintain control of the House and gain 60 seats in the Senate, Congress will likely repeal PPACA. However, if President Obama wins re-election, he would almost certainly veto such a repeal. To override the President’s veto, Republicans would need a two-thirds majority vote in the House and Senate.”

    It will of course be fascinating to watch the case unfold. We’ll post additional updates as they come in.

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    And in the meantime, listen to this audio update from today’s hearings: Highlights from Day One of Health Care Arguments

  5. Sackett v. EPA: Score One for Landowners in SCOTUS Decision

    “This is not a case about the correctness of EPA’s policies; it’s a case about government employees not behaving consistent with fundamental American values” - Foley Hoag

    For your interest, here’s a roundup of analysis to do with an interesting Supreme Court decision (Sackett v. EPA) handed down March 21, 2012. 

    File under landowner rights, the Clean Water Act, and related matters:

    David Cooke from law firm Allen Matkins on the unanimous Supreme Court ruling that parties who receive administrative compliance orders from the U.S. Environmental Protection Agency under the authority of the federal Clean Water Act are entitled to “pre-enforcement review,” and may bring lawsuits to challenge the jurisdictional basis for such orders in court. (Sackett v EPA - Supreme Court Authorizes Pre-Enforcement Review of Clean Water Act Compliance Orders by Allen Matkins Leck Gamble Mallory & Natsis LLP)

    Landowners Can Now Challenge Corps Without Fear Of Penalties (Wendel Rosen):

    “The EPA issued a compliance order asserting that landowners violated the Clean Water Act because they filled wetlands on their land without obtaining a permit. The EPA relies on these compliance orders and the threat of significant fines (up to $37,500 a day) to ‘urge’ landowners to comply quickly with such orders. These landowners fought back, claiming their property was not a wetland, but, under previous rulings, they had no way to challenge the EPA’s unilateral wetland claim” Read on»

    Clean Water Act Orders Subject to Pre-Enforcement Review (Morgan Lewis)

    “The case provides parties subject to Clean Water Act compliance orders with the ability to seek pre-enforcement judicial review of the question of whether they are subject to EPA’s jurisdiction. Moreover, Justice Ruth Bader Ginsburg’s concurring opinion raises whether pre-enforcement judicial review also is available to contest the terms and conditions of such compliance orders—a question the full Court did not reach. This decision may also open the door for pre-enforcement review of orders under other environmental statutes that do not expressly preclude judicial review, such as “imminent hazard” orders issued under Section 7003 of the Resource Conservation and Recovery Act…” Read on»

    The Subtext of Sackett v. EPA (Foley Hoag)

    “The language used in Sackett is both sarcastic and highly personalized.  In a sentence dripping with sarcasm, Justice Scalia notes that EPA’s order concluding that there was a violation of the Clean Water Act constituted the end of EPA’s administrative deliberation; however, he goes on to comment snidely: ‘the agency may still have to deliberate over whether it is confident enough about this conclusion to initiate litigation, but that is a separate subject.’ Significantly, in the opening salvo of his Concurring Opinion, Justice Alito speaks not of EPA but of EPA’s employees – ‘[the federal government’s position] would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees’.  Justice Alito’s reference to the EPA’s employees personalizes the point.  This is not a case about the correctness of EPA’s policies; it’s a case about government employees not behaving consistent with fundamental American values.” Read on»

    EPA Loses — Unanimously — In Sackett: How Broadly Does It Sweep? (Foley Hoag)

    “The Court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determina­tion under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of viola­tions alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.

    Unfortunately, the heavy hand of government regulation only got a little lighter as a result of this decision, and Justice Alito is absolutely correct that uncertainty about jurisdiction does not help land owners. We’re not done with post-Rapanos litigation.” Read on»

    Supreme Court Expands Right to Challenge Federal Assertions of Clean Water Act Regulatory Jurisdiction (White & Case LLP)

    Prior to this decision, there were only two ways that private parties could be assured of obtaining judicial review of EPA and Corps’ assertions of wetland jurisdiction over specific properties: by waiting for the Corps to issue or deny a Clean Water Act § 404 permit and then filing a challenge under the APA, or by waiting for the Justice Department to file an enforcement action against a person in U.S. District Court. Most courts have refused to hear challenges to administrative compliance orders on grounds that such orders did not represent ‘final agency action’ and that the Clean Water Act barred pre-enforcement review. On similar grounds, courts also generally have refused to hear challenges to formal ‘jurisdictional determinations’ issued by the Corps. The result was that most property owners had little choice but to acquiesce to EPA and Corps assertions of wetland jurisdiction over their properties, even if they disagreed with the agencies, because the price of getting into court was too high.” Read on»

    Supreme Court Rules that U.S. EPA Unilateral Compliance Orders Under the Clean Water Act Are Final Actions Judicially Reviewable (K&L Gates LLP)

    “This case may be viewed as having advanced the education of the Court on the question of due process in unilateral administrative orders. In General Electric Co. v. Jackson, the D.C. Circuit upheld the constitutionality of CERCLA UAOs, but the Supreme Court denied certiorari. The D.C. Circuit relied on the notion that UAO recipients ‘may obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue in federal court.’ The Sackett decision shows that the Court is becoming aware of the illusory nature of such a remedy, since EPA cannot be ‘forced’ to sue, while penalty claims accrue as though they were liens. The Court’s expressions of concern in Sackett about the consequences of EPA’s use of unappealable orders suggest that there may be a due-process question that will be deemed cert.-worthy in the future.” Read on»

    U.S. Supreme Court Opens Courthouse Doors for Early Challenges to Environmental Agency Orders (Morrison & Foerster LLP)

    The High Court’s decision may also give rise to more judicial challenges to EPA’s wetland determinations and the reach of the CWA, a complex question that the petitioners did not advance and the Court did not address but that the concurring opinions raise. The majority opinion states that it did not resolve the dispute on the merits, but it did not expressly limit the scope of the petitioners’ challenge to the compliance order.” Read on»

    US Supreme Court Rules Property Owners May Sue the EPA Over a Wetlands Restoration Order (Lane Powell PC)

    “In a concurring opinion, Justice Alito pointed out a larger, as yet-undecided issue (and one that will be crucial to the Sacketts’ jurisdictional claims) — what exactly constitutes ‘waters of the United States’ subject to the Clean Water Act. The ambiguous term has left the courts and the EPA to ‘feel their way on a case-by-case basis’ about the scope of jurisdiction over wetlands. According to Justice Alito: ‘Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.’” Read on»

    Supreme Court Weakens EPA’s Enforcement Regime (Bryan Cave)

    “The case has potential ramifications beyond the Clean Water Act. Other than CERCLA (which has an express provision barring pre-enforcement review), key environmental statutes such as the Clean Air Act and RCRA contain similar administrative order regimes.” Read on»

    Supreme Court Rules Property Owners May Challenge EPA Compliance Orders (Parker Moore)

    “This emphatic decision puts to an end EPA’s heavy-handed practice under the CWA of forcing citizens either to comply, with no judicial recourse, with an arguably illegal order or, if the citizen refuses, to face a federal lawsuit along with mounting penalties for every day the citizen declines to adhere to the agency’s compliance order.” Read on»

    See also:

    • Sackett v. EPA: U.S. Supreme Court Unanimously Affirms Judicial Review of EPA Clean Water Act Unilateral Compliance Orders (Proskauer Rose LLP) 

    • Sackett v. EPA – Supreme Court Allows Pre-Enforcement Review of Clean Water Act Compliance Orders (Greenberg Glusker Fields Claman & Machtinger LLP) 

    • Sackett v. EPA: Property Owners May Challenge EPA Orders (Mintz Levin) 

    • U.S. Supreme Court Opens Courthouse Doors for Early Challenges to Environmental Agency Orders (Morrison & Foerster LLP) 

    • U.S. Supreme Court Expands Judicial Review of Clean Water Act Enforcement Orders (Farella Braun + Martel LLP) 

    • Supreme Court to U.S. EPA: No Bullying Allowed Under Clean Water Act (Dinsmore & Shohl LLP) 

    • U.S. Supreme Court Authorizes Pre-Enforcement Review of Clean Water Act Compliance Orders (Allen Matkins Leck Gamble Mallory & Natsis LLP) 

    Read the Supreme Court decision: Sackett v. EPA

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    Additional Environmental Law updates»

  6. Mayo v. Prometheus: SCOTUS Issues Landmark IP Law Opinion

    [UPDATE: See below for complete reading list of analysis and commentary, growing as the work comes in.]

    Yesterday the United States Supreme Court issued its unanimous decision in Mayo Collaborative Services v Prometheus Laboratories, a significant intellectual property case that, according to law firm Patton Boggs LLP:

    “…has widespread impact on the pharmaceutical and biotechnology industries, which have obtained thousands of U.S. patents on diagnostic tests used to determine diseases and disorders, and potential treatments and treatment dosages.”

    What’s at the heart of Mayo v Prometheus? Again from Patton Boggs:

    “The Supreme Court held that drug metabolism is an entirely natural process and therefore the correlation between the metabolites in a patient and the thiopurine dosage was an unpatentable law of nature. Justice Breyer wrote the decision, stating ‘the relation is a consequence of the ways in which thiopurine compounds are metabolized by the body—entirely natural processes. And so a patent that simply describes that relation sets forth a natural law.’ Under U.S. patent law, natural laws are not patentable by themselves, but they may be ‘transformed’ into a patentable process in certain circumstances.”

    [To read the entire update, see: In A Decision With Potential Widespread Impact, The Supreme Court Holds That Methods Of Personalized Pharmaceutical Dosing Are Not Patentable]

    U.S. patent attorney Gene Quinn, writing on IPWatchdog, called Justice Breyer’s “the most intellectually dishonest decision I have ever read, which is saying a lot given the utter contemptuous understanding of patent law displayed by the Supreme Court over the years.” [Killing Industry: The Supreme Court Blows Mayo v. Prometheus]

    Yesterday, intellectual property firm McDonnell Boehnen Hulbert & Berghoff LLP issued the following on early reaction to the decision:

    “Dr. Robert Wah, Board Chair for the American Medical Association (AMA), … welcomed the Supreme Court’s decision invalidating Prometheus’ patents. Asserting that the Court had ‘prevented irreparable harm to patient care with today’s unanimous decision to invalidate two patents that gave Prometheus Laboratories exclusive rights over the body’s natural responses to illness and medical treatment,’ the AMA declared that the decision was “a clear legal victory that ensures critical scientific data remain widely available for sound patient care and innovative medical research.’”

    [For entire alert, see: Early Reaction to Supreme Court Decision in Mayo v. Prometheus]

    Also from MBHB:

    “The general message conveyed by the Court seems to be two-fold.  First, if ‘the steps in claimed processes (apart from the natural laws themselves) involve well-understood, routine, conventional activity previously engaged in by researchers in the field,’ such claims likely encompass non-patentable subject matter.  And second, the Court demonstrated general concern that ‘upholding the patents would risk disproportionately tying up the use of the underlying natural laws, inhibiting their use in the making of further discoveries.’ How this message affects the thousands of existing patents in the field of personal medicine remains to be seen.  However, going forward, patent practitioners would be wise to revisit this ruling when drafting claims to medical diagnostic methods.” [Mayo Collaborative Services v. Prometheus Laboratories, Inc. (2012)]

    Law firm Fenwick & West LLP tells us that the implications of this decision extend well beyond the life sciences field(s):

    “For other industries as well, this decision has a clear impact. For instance, the question about whether patent-eligibility is merely a ‘coarse filter’ that should be avoided when possible is now settled—the patent eligibility analysis must be undertaken. The Court’s approach of dissecting method claims to determine which portions state laws of nature and which portions recite conventional steps is in sharp contrast with how the USPTO and courts have been analyzing claims in recent years. If such holding is extended to include the other branches of the ‘implicit exception’ to patentability that the Court references (i.e., natural phenomena and abstract ideas), then a very wide swath of science and technology areas are implicated…” [Supreme Court Issues Groundbreaking Decision Limiting the Types of Methods that are Eligible for Patenting]

    Fascinating case. We’ll be posting additional commentary and analysis as it comes in. In meantime, early updates:

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    Follow additional Intellectual Property Law updates on JD Supra»

  7. Popular On JD Supra Today [3-20-2012]

    For your reference, a look at seven of the most well-read law firm advisories and updates on JD Supra today:

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    Additional popular updates: @JDSupraBuzz on Twitter.

    And, in light of today’s Mayo v. Prometheus decision, we have no choice but to end this post (and launch this blog!) with:

    See you tomorrow!