On December 4, 2018, the Supreme Court heard argument in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc. This case arose out of a dispute over the validity of a patent covering a product used to reduce the likelihood of chemotherapy-induced nausea and vomiting. At issue in this case is whether agreements entered into by Helsinn more than one year prior to filing for patent protection put the invention “on sale” and thus would invalidate the patent. Although the meaning of “on sale” in the Patent Act was long believed to be settled, the 2011 America Invents Act (AIA) made changes to the statutory provisions that include the “on sale” bar. The question for the Supreme Court is whether these changes to the statute change the previous understanding of the term “on sale.”
In April 2001, Helsinn entered into two agreements with MGI Pharma. Although these agreements were announced in a press release, specific information about the products, like dosing formulations, were omitted. In 2003, Helsinn filed a provisional patent application covering the product. Three patents arose from this provisional patent application prior to the enactment of the AIA; however, one patent was subject to the new provisions of the AIA.
In 2011, Teva sought FDA approval to make a generic version of the patented product. Helsinn sued Teva for patent infringement based on this ANDA filing. Teva argued that the patent was invalid because Helsinn’s agreements with MGI put the product “on sale” before the relevant date. The district court rejected Teva’s argument, concluding that the AIA had changed the meaning of “on sale” to require the invention be made public by the sale. Because the dosing information was not provided in the press release regarding the agreements, the district court concluded the agreements did not make the invention public and there was no “on sale” bar.
The Federal Circuit reversed, holding that inventions are made available to the public whenever there is a commercial offer for sale and that the sale is public even when the details of the invention are not disclosed to the public by the sale. Thus, the “on sale” bar applied to Helsinn’s patent.
The U.S. Supreme Court then granted certiorari to address whether under the AIA, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention.
To the discuss the case, we have Kristen Osenga, Professor of Law at University of Richmond School of Law.
Opening Arguments - OA235: Corporations Are People, My Friend… Criminal People
Today's Rapid Response episode takes a look at three breaking stories related to the White House: (1) the recent ruling requiring Stormy Daniels to pay Trump's attorneys' fees; (2) the sentencing of Trump's former lawyer, Michael Cohen; and (3) most importantly, the plea deal signed by American Media, Inc. -- parent company to the National Enquirer -- to cooperate with the Special Counsel's Office.
We begin by revisiting the question of whether, in fact, Stormy Daniels is still a legal genius. (Hint: she is.) But what does it mean that a court just ordered her to pay Trump nearly $300,000 -- and why could it have been much, much worse? Listen and find out.
After that, we check out Trump's ex-"fixer" and the former Taxi King of New York, Michael Cohen, who was just sentenced to three years in prison.
Then it's time for a fascinating look into a non-prosecution agreement reached between the Special Counsel's Office and American Media, Inc. that tell us an awful lot about where Yodel Mountain is headed.
Finally, we end with an all new Thomas Takes The Bar Exam #105 on modifications to a contract. As always, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry!
Appearances
None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.
Show Notes & Links
- Here's the merits ruling defamation we referenced during the show; you can also check out Trump's motion for attorneys' fees, Avenatti's (rather weak) opposition brief, and the court's ruling directing Stormy to pay almost $300,000.
- And because it never ends, check out the mediation questionnaire filled out by Avenatti for their appeal to the 9th Circuit.
- You know you want to read the press release regarding Michael Cohen's sentence; after that, you can check out the sentencing memoranda filed by the SCO's office ("good cop") as well as the brief filed by the SDNY ("bad cop").
- Finally, this is the AMI agreeement as well as the DOJ guidelines on prosecuting corporations.
- Oh, and just for fun, here's Jose Canseco's audition to be Trump's Chief of Staff. #YesWeCanseco
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SCOTUScast - Timbs v. Indiana – Post-Argument SCOTUScast
On November 28, 2018, the Supreme Court heard argument in Timbs v. Indiana, a case involving the Eighth Amendment’s excessive fines clause, the Fourteenth Amendment, and the concept of “incorporation” against the states.
In May 2013, Tyson Timbs was apprehended en route to a controlled drug purchase, having previously purchased about $400 worth of heroin from undercover police officers. He ultimately pled guilty to felony counts of drug dealing and conspiracy to commit theft, and was sentenced to six years of imprisonment (with five suspended to probation). Timbs also had to pay roughly $1,200 in police costs and related fees. The State of Indiana then sought forfeiture of Timbs’ Land Rover, which he had used $42,000 of his late father’s life insurance proceeds to purchase, but had driven to buy and transport heroin. Lower courts ordered the vehicle released to Timbs, concluding that forfeiture of the Land Rover would impose an excessive fine in violation of the U.S. Constitution’s Eighth Amendment. The Supreme Court of Indiana, however, reinstated the forfeiture on the grounds that the U.S. Supreme Court had never incorporated the excessive fine clause against the states via the Fourteenth Amendment.
The U.S. Supreme Court thereafter granted certiorari to address that issue: whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.
To the discuss the case, we have Christopher Green, Associate Professor of Law and H.L.A. Hart Scholar in Law and Philosophy at University of Mississippi School of Law.
In May 2013, Tyson Timbs was apprehended en route to a controlled drug purchase, having previously purchased about $400 worth of heroin from undercover police officers. He ultimately pled guilty to felony counts of drug dealing and conspiracy to commit theft, and was sentenced to six years of imprisonment (with five suspended to probation). Timbs also had to pay roughly $1,200 in police costs and related fees. The State of Indiana then sought forfeiture of Timbs’ Land Rover, which he had used $42,000 of his late father’s life insurance proceeds to purchase, but had driven to buy and transport heroin. Lower courts ordered the vehicle released to Timbs, concluding that forfeiture of the Land Rover would impose an excessive fine in violation of the U.S. Constitution’s Eighth Amendment. The Supreme Court of Indiana, however, reinstated the forfeiture on the grounds that the U.S. Supreme Court had never incorporated the excessive fine clause against the states via the Fourteenth Amendment.
The U.S. Supreme Court thereafter granted certiorari to address that issue: whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.
To the discuss the case, we have Christopher Green, Associate Professor of Law and H.L.A. Hart Scholar in Law and Philosophy at University of Mississippi School of Law.
Opening Arguments - OA234: Civil Forfeiture, Berkeley & More!
Today's deep-dive Tuesday tackles a viral oral argument before the Supreme Court in Timbs v. Indiana regarding civil forfeiture -- and a delightful question (that inspired the graphic for the show notes) about whether the state can seize your Bugatti for speeding. Oh, and we check back in on the Ann Coulter v. Berkeley lawsuit that was recently settled. What happened? Listen and find out!
We begin with the Berkeley settlement, and break down exactly what the University did (and didn't) promise to do going forward. Is this a "big win" for the right wing? (Hint: no.)
Then, it's time to delve deeply into Timbs v. Indiana and discuss the law of civil asset forfeiture, the doctrine of proportionality, and even the concept of incorporation. Yes, it's a crazy Civ Pro kinda day.. you won't want to miss it!
Then, it's time for a BRAND NEW SEGMENT -- "Yodel Mountain Remembers!" We think you're gonna love it!
Oh, and we also tackle a terrific listener question about the "apology doctrine" and the nation that made apologies famous -- Canada (of course).
After all that, it's time for the answer to Thomas Takes The Bar Exam #104 regarding government action and the warrant requirement of the Fifth Amendment. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!
Appearances
None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.
Show Notes & Links
- Click here to read the Berkeley settlement.
- This is a link to the oral argument in Timbs v. Indiana.
- Finally, you can check out Maryland's "apology law," Maryland Code, Courts and Judicial Proceedings Article, § 10-920(b), by clicking here.
- This is the delightfully demented Corsi lawsuit against Mueller,
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Amicus With Dahlia Lithwick | Law, justice, and the courts - Mapping the Mueller Investigation
*This week's show was recorded before Friday's filings concerning Paul Manafort and Michael Cohen, but the merits of the discussion stand. Mimi Rocah, a former federal prosecutor in the Southern District of New York, now a Criminal Justice Fellow at Pace Law School draws out the themes of the Mueller investigation. Plus Dahlia Lithwick is joined by Riyaz Kanji, an attorney for the Creek Nation, to explore the fascinating questions and disgraceful history involved in Carpenter v Murphy, a case argued by Kanji before the Supreme Court last week. The case started with a murder and now involves questions of sovereignty over 3 million acres in Oklahoma.
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Opening Arguments - OA233: [REDACTED] & Wisconsin
Today's Rapid Response episode takes a look at two pressing issues: (1) Mueller's [REDACTED] sentencing memorandum with respect to Michael Flynn, and (2) the naked power grab by lame-duck Republicans in Wisconsin. Along the way, we'll also cover a bunch more legal stories, but you knew that already!
We begin high atop Yodel Mountain, where we cover not only the [REDACTED] Flynn memorandum but also Roger Stone taking 5 and a truly bizarre conspiracy theory advanced by Rudy Giuliani.
Then, it's time for the main segment, in which we tackle Wisconsin SB 887 and its component bills that are designed to weaken drastically the strength of the incoming Democratic governor, Tony Evers. Is it as bad as everyone says it is? (It's worse.)
After that, it's time for a brief Andrew Was Wrong segment. Turns out Andrew Was Wrong about both Julian Assange and American paddlefish!
Finally, we end with an all new Thomas Takes The Bar Exam #102 on evidence and the admissibility of hearsay. Find out how Thomas outsources the decision and more. And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry!
Appearances
Andrew was recently a guest on the David Pakman show talking court-packing and more. Give it a listen! And, as always, if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.
Show Notes & Links
- You can read the (non-censored) baseline Sentencing Memorandum filed by Mueller here, and the [REDACTED] Supplemental by clicking here.
- Here are the texts of the various Wisconsin bills: SB 884, SB 886, and the final bill, SB 887.
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SCOTUScast - Stokeling v. United States, United States v. Stitt, and United States v. Sims – Post-Argument SCOTUScast
On October 9, 2018, the Supreme Court heard arguments in Stokeling v. United States and the consolidated cases United States v. Stitt and United States v. Sims, all disputes that involve the federal Armed Career Criminal Act (ACCA).
ACCA imposes a 15-year mandatory minimum prison sentence on any federal firearms offender who has three or more convictions for a “violent” felony or serious drug offense. In determining whether any given predicate felony conviction qualifies as “violent,” federal courts apply a “categorical” approach that looks only to the elements of the predicate offense and not the underlying facts. If the elements include “the use, attempted use, or threatened use of physical force against the person or property of another,” the conviction qualifies as a violent felony.
In Stokeling v. United States, the U.S. Court of Appeals for the Eleventh Circuit held that Stokeling’s Florida conviction for “robbery by sudden snatching” categorically qualified as a violent felony. The Supreme Court granted certiorari to consider whether that analysis holds when the state offense includes as an element the common law requirement of overcoming “victim resistance,” and state appellate courts have required only slight force to satisfy that element.
In United States v. Stitt, consolidated with United States v. Sims, both defendants persuaded federal courts of appeals--the Sixth Circuit for Stitt and the Eighth Circuit for Sims--that their sentences were improperly enhanced because predicate burglary convictions under the laws of Tennessee and Arkansas, respectively, involved elements categorically broader than the generic burglary encompassed by ACCA. ACCA deems burglary a violent felony, but takes a generic view of burglary that may be narrower than some state burglary laws. The Supreme Court consolidated the two cases and granted certiorari to consider whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” for purposes of ACCA.
To the discuss the case, we have Luke Milligan, Professor of Law at the University of Louisville Brandeis School of Law.
ACCA imposes a 15-year mandatory minimum prison sentence on any federal firearms offender who has three or more convictions for a “violent” felony or serious drug offense. In determining whether any given predicate felony conviction qualifies as “violent,” federal courts apply a “categorical” approach that looks only to the elements of the predicate offense and not the underlying facts. If the elements include “the use, attempted use, or threatened use of physical force against the person or property of another,” the conviction qualifies as a violent felony.
In Stokeling v. United States, the U.S. Court of Appeals for the Eleventh Circuit held that Stokeling’s Florida conviction for “robbery by sudden snatching” categorically qualified as a violent felony. The Supreme Court granted certiorari to consider whether that analysis holds when the state offense includes as an element the common law requirement of overcoming “victim resistance,” and state appellate courts have required only slight force to satisfy that element.
In United States v. Stitt, consolidated with United States v. Sims, both defendants persuaded federal courts of appeals--the Sixth Circuit for Stitt and the Eighth Circuit for Sims--that their sentences were improperly enhanced because predicate burglary convictions under the laws of Tennessee and Arkansas, respectively, involved elements categorically broader than the generic burglary encompassed by ACCA. ACCA deems burglary a violent felony, but takes a generic view of burglary that may be narrower than some state burglary laws. The Supreme Court consolidated the two cases and granted certiorari to consider whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” for purposes of ACCA.
To the discuss the case, we have Luke Milligan, Professor of Law at the University of Louisville Brandeis School of Law.
Opening Arguments - OA232: Trump’s Plan to Weaponize the Census (& Bridgegate!)
Today's deep-dive Tuesday takes us back to a time in which politically-motivated revenge was actually seen as a scandal; namely, Chris Christie's Bridgegate. There's a new ruling out of the Third Circuit that affects two Christie staffers, and... well, you'll just have to listen and find out!
Then, it's time to take a long look at ongoing litigation surrounding the Trump Administration's efforts to deter Democrats from registering for the Census, thus reducing their voting power. What does a trial in district court have to do with the Supreme Court's recent grant of certiorari?
After that, we answer a terrific Patron listener question regarding the European loser-pays-legal fees model versus the American pay-your-own-way model. Yes, the American model seems counter-intuitive at best (and downright regressive at worst), but is shifting to a loser-pays model the answer? Andrew talks about his experiences and the guys go through a bunch of options.
And finally, we end with the answer to Thomas Takes The Bar Exam #103 on the Takings Clause! As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!
Appearances
Andrew was recently a guest on the David Pakman show talking court-packing and more. Give it a listen! And, as always, if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.
Show Notes & Links
- You can read the 3rd Circuit's opinion in Bridgegate by clicking here.
- Click here to read the Court's order in the Census litigation, which shows that Thomas-Alito-Gorsuch would have granted a stay.
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Opening Arguments - OA231: The End of the Beginning (for Trump)
"Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning." - Winston Churchill. And yes, today does, in fact, mark the end of the beginning of the Mueller Investigation... and perhaps for Donald Trump. Why? You'll just have to listen and find out!
In this super-sized episode, we tackle:
(1) Michael Cohen's just-announced plea to a new count of lying -- this time in connection with his prior testimony before the Senate and House Intelligence Committees investigating Russian interference in the 2016 elections;
(2) A follow-up on Andrew Miller and Concord Management and Consulting, including a fascinating new blog written by Randall Eliason with Yodel Mountain implications;
(3) Paul Manafort's apparent repudiation of his plea deal with Mueller, what that means and when we'll know;
(4) Jerome Corsi's public refusal to plead and cooperate with the Mueller investigation over WikiLeaks and Julian Assange; and
(5) An update in the Brain Frosh
Finally, we end with an all new Thomas Takes The Bar Exam #103 on a property owner who has the rug pulled out from under him due to a new law. If you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry!
Appearances
None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.
Show Notes & Links
- Click here to read the new Information to which Cohen pled guilty to today.
- This is the BuzzFeed article on Cohen, Felix Sater, and Trump's efforts to get a building in Moscow over the past 30 years. Oh, and here's a link to Trump's tweet that he has "ZERO INVESTMENTS IN RUSSIA."
- We discussed the Andrew Miller lawsuit in OA 229; you'll definitely want to read the two new filings: Silbey's supplemental amicus "letter", and Christenson's... something.
- You'll definitely want to check out Randall Eliason's blog analyzing the Concord Management and Consulting lawsuit and what it means for 18 U.S.C. § 371 conspiracy charges (of the sort that might be filed against Trump).
- Here's Manafort's original plea deal, and this is the Joint Status Report filed earlier this week. Oh, and this is Manafort's waiver of his right to appear at the scheduling conference.
- This is the Marcy Wheeler article we broke down; for the other side, here's the Wall Street Journal report suggesting Manafort lied about non-Trump-related personal business dealings.
- This is the Guardian article connecting Manafort to Julian Assange and WikiLeaks; here is the fantastic Washington Post article and timeline on what that means if true.
- Here's Corsi's draft deal with Manafort that he rejected.
- Finally, we discussed the Brian Frosh lawsuit against Matthew Whitaker in Episode 227; you can now read the amicus brief filed by 15 state attorneys general. Phew!
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SCOTUScast - Jam v. International Finance Corporation
On October 31, 2018, the Supreme Court heard argument in Jam v. International Finance Corporation, a case involving the scope of the International Organizations Immunities Act.
The International Finance Group (IFC) is an international organization which provides loans to projects in developing countries that do not have the necessary private capital for projects. Under the International Organizations Immunities Act (IOIA), the IFC is an organization designated to “enjoy the same immunity from suit … as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.” The IFC funded the construction of the Tata Mundra Power Plant in Gujarat, India, with a proviso that the plant had to follow an Environmental and Social Action Plan to protect the surrounding community; failure to follow the Plan would result in a loss of financial support. The power plant did not follow the Plan, but the IFC did not revoke funding. Members of the surrounding community sued the IFC in district court, claiming that the IFC is responsible for their injuries because it continued funding the project despite the plant’s clear failure to follow the Environmental and Social Action Plan. The district court dismissed the complaint on the grounds that the IFC was immune from suit. The petitioners appealed to the US Court of Appeals for the DC Circuit, which agreed with the district court.
The US Supreme Court then granted certiorari to address whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.
To the discuss the case, we have Mike Ramsey, Professor of Law at University of San Diego School of Law.
The International Finance Group (IFC) is an international organization which provides loans to projects in developing countries that do not have the necessary private capital for projects. Under the International Organizations Immunities Act (IOIA), the IFC is an organization designated to “enjoy the same immunity from suit … as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.” The IFC funded the construction of the Tata Mundra Power Plant in Gujarat, India, with a proviso that the plant had to follow an Environmental and Social Action Plan to protect the surrounding community; failure to follow the Plan would result in a loss of financial support. The power plant did not follow the Plan, but the IFC did not revoke funding. Members of the surrounding community sued the IFC in district court, claiming that the IFC is responsible for their injuries because it continued funding the project despite the plant’s clear failure to follow the Environmental and Social Action Plan. The district court dismissed the complaint on the grounds that the IFC was immune from suit. The petitioners appealed to the US Court of Appeals for the DC Circuit, which agreed with the district court.
The US Supreme Court then granted certiorari to address whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.
To the discuss the case, we have Mike Ramsey, Professor of Law at University of San Diego School of Law.