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2012 OFII General Counsel Conference Washington, D.C. 2011 Term.

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Presentation on theme: "2012 OFII General Counsel Conference Washington, D.C. 2011 Term."— Presentation transcript:

1 2012 OFII General Counsel Conference Washington, D.C. 2011 Term

2 2012 OFII General Counsel Conference Washington, D.C. Issue: Whether medical tests that rely on correlations between drug dosages and treatment are eligible for patent protection. Holding: To transform an unpatentable law of nature into a patent-eligible application of that law, a patent must do more than simply state the law of nature while adding the words “apply it.” The patent must describe a particular, inventive application of the law of nature. Mayo Collaborative Services v. Prometheus Laboratories, Inc.

3 2012 OFII General Counsel Conference Washington, D.C. Issue: Whether, upon a jury’s finding of liability for improper chemical storage for at least one day, the judge could impose the statutory penalty (fine) based upon 762 days of violations Holding: Apprendi’s rule that the Sixth Amendment right to a jury trial requires that the jury, rather than the judge, find any facts that increase a defendant’s maximum potential sentence also applies to criminal fines Southern Union Co. v. United States

4 2012 OFII General Counsel Conference Washington, D.C. Credit Suisse Securities v. Simmonds Issue: Whether the two-year time limit for bringing an action under Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b), is subject to tolling Holding: Normal equitable tolling rules apply to statute of limitations for section 16(b) actions

5 2012 OFII General Counsel Conference Washington, D.C. Issue: Whether the Torture Victim Protection Act (“TVPA”) applies to organizations or only to natural persons. Facts: U.S. citizen died in Palestinian territory after being allegedly tortured by members of the PLO. Holding: The term “individual” in the TVPA encompasses only natural persons and therefore does not impose liability on organizations. Mohamad v. Palestinian Authority

6 2012 OFII General Counsel Conference Washington, D.C. Issues: 1)Whether corporate civil tort liability under the Alien Tort Statute (“ATS”) is a merits question or an issue of subject matter jurisdiction; 2)Whether corporations may be sued in under the ATS; 3)Whether, and under what circumstances, courts should recognize ATS claims for violations of the law of nations occurring within the territory of a sovereign other than the United States. Facts: Kiobel alleges that the Nigerian government, aided and abetted by Shell, engaged in torture and other human rights abuses. Kiobel v. Royal Dutch Petroleum

7 2012 OFII General Counsel Conference Washington, D.C. The Alien Tort Statute "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350

8 2012 OFII General Counsel Conference Washington, D.C. Violations of the Law of Nations 1.Offenses against ambassadors 2.Violations of safe conduct 3.Individual actions relating to piracy

9 2012 OFII General Counsel Conference Washington, D.C. A New Beginning for ATS: Filartiga v. Pena-Irala "[O]fficial torture is now prohibited by the law of nations." Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

10 2012 OFII General Counsel Conference Washington, D.C. A New Beginning for ATS: Filartiga v. Pena-Irala ATS provides jurisdiction over: 1.Tort actions, 2.Brought by aliens (only), 3.For violations of the law of nations (customary international law).

11 2012 OFII General Counsel Conference Washington, D.C. Modern ATS: Against Corporations 11

12 2012 OFII General Counsel Conference Washington, D.C. Supreme Court: Sosa v. Alvarez-Machain (2004) DEA abducts Alvarez-Machain from Mexico to stand trial in the U.S. Alvarez-Machain sues for arbitrary detention under ATS. Arbitrary detention of less than a day does not violate the law of nations. 12

13 2012 OFII General Counsel Conference Washington, D.C. Supreme Court: Sosa v. Alvarez-Machain (2004) ATS creates no new causes of action, but is jurisdictional only. Federal courts can recognize limited number of federal common law claims based on the law of nations. Should not recognize claims with less definite content and acceptance than historical paradigm. 13

14 2012 OFII General Counsel Conference Washington, D.C. ATS Cases: By the Numbers 1789 – 1980: 20 reported cases 1980 – 2008: 185 reported cases –1980 – 2004: 81 reported cases –2004 – 2008: 104 reported cases 14

15 2012 OFII General Counsel Conference Washington, D.C. Issue: Whether the Affordable Care Act’s “individual mandate” to have health insurance or pay a penalty is constitutional; whether the Act’s requirement that states expand Medicaid or else lose funding is constitutional. Holding: The individual mandate can be upheld under Congress’ power to levy taxes, though not under its Commerce Clause powers. Holding: The Act’s Medicaid expansion is unconstitutional because it is too coercive vis-à-vis the states; the unconstitutionality is cured by severing that portion, leaving the remainder of the Act standing. Nat’l Federation of Independent Business v. Sebelius

16 2012 OFII General Counsel Conference Washington, D.C. Issue: Whether Arizona’s 2010 immigration law is unconstitutional as preempted by federal immigration law. Holding: Certain aspects of the Arizona law (e.g. penalizing failure to register as an alien, making it illegal for an alien to seek or engage in work, permitting warrantless arrests) are preempted, either because Congress has occupied the field, or because they are obstacles to federal law. Holding: The Arizona law’s “show me your papers” provision is not preempted on its face and should not have been enjoined; the door remains open, however, to an “as applied” challenge depending on how the provision is interpreted and applied by the state and state courts. Arizona v. United States

17 2012 OFII General Counsel Conference Washington, D.C. Issue: Whether a debtor may pursue a Chapter 11 plan that proposes to sell assets free of liens without allowing the secured creditor to credit bid, but instead providing it with the indubitable equivalent of its claim. Holding: a secured creditor must be permitted to credit bid, where a Chapter 11 plan provides for the sale of collateral free and clear of the lien. RadLAX Gateway Hotel, LLC v. Amalgamated Bank

18 2012 OFII General Counsel Conference Washington, D.C. 2012 Term

19 2012 OFII General Counsel Conference Washington, D.C. Fisher v. University of Texas at Austin Issue: Whether the Court’s decisions interpreting the Equal Protection Clause of the 14th Amendment, including Grutter v. Bollinger, permit UT’s use of race in undergraduate admissions decisions White woman applied to UT and was rejected; claims UT’s use of race as a factor in admissions is unconstitutional Lower courts upheld UT’s admissions policy where race is a factor among many in UT’s admissions decisions to achieve student body diversity Case puts in question whether universities may consider race at all in admissions decisions

20 2012 OFII General Counsel Conference Washington, D.C. Kirtsaeng v. John Wiley & Sons, Inc. Issue: How do two provisions of the Copyright Act [sections 602(a)(1) and 109(a)] apply to a copy that was made and legally acquired abroad and then imported into the United States? –Section 602(a)(1) prohibits the importation of a work without the authority of the copyright’s owner –Section 109(a) allows the owner of a copy “lawfully made under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission Petitioner lawfully purchased textbooks from Wiley-Asia, imported them to U.S., and resold them on eBay

21 2012 OFII General Counsel Conference Washington, D.C. Issues: Whether, in a misrepresentation case under Rule 10b-5, the district court must require proof of materiality before certifying a class based on the fraud-on-the-market theory; Whether, in such a case, the district court must allow the defendant to present evidence rebutting the applicability of the fraud-on-the- market theory before certifying a plaintiff class based on that theory. Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds Comcast v. Behrend Issue: Whether a district court may certify a class action without resolving “merits arguments” that bear on Rule 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).

22 2012 OFII General Counsel Conference Washington, D.C. The Standard Fire Insurance Co. v. Knowles Issue: Whether when a named plaintiff attempts to defeat a defendant’s right of removal under the Class Action Fairness Act of 2005 by filing with a class action complaint a “stipulation” that attempts to limit the damages plaintiff “seeks” for the absent putative class members to less than the $5 million threshold for federal jurisdiction, and the defendant establishes that the actual amount in controversy, absent the “stipulation,” exceeds $5 million, the “stipulation” is binding on absent class members so as to destroy federal jurisdiction.

23 2012 OFII General Counsel Conference Washington, D.C. The Standard Fire Insurance Co. v. Knowles Cont’d Smith v. Bayer Corp. says named plaintiff cannot bind other proposed class members until class is certified District court held that plaintiff’s “stipulation” to claim less than $5 million threshold barred removal


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