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THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and discuss provisions of the Copyright Act. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Sixth Circuit Court of Appeals. * * * American copyright law has long recognized that a work created by an employee belongs to the employer, who is then viewed as the author and copyright holder. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 248, 23 S.Ct. 298, 47 L.Ed. 460 (1903). This judge-made doctrine was "later codified in the Copyright Act of 1909." Forward v. Thorogood, 985 F.2d 604, 606 (1st Cir. 1993). However, the 1909 Act did not provide much detail. It indicated that "[t]he word 'author' shall include an employer in the case of works made for hire," 17 U.S.C. § 26 (1976 ed.) (1909 Act), but did not define "employer" or "works made for hire." As a result, "the task of shaping these terms fell to the courts." Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 744, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). Initially, courts limited the doctrine to "the traditional employer-employee relationship," that is, to "a work created by an employee acting within the scope of employment." Forward, 985 F.2d at 606. Later, however, courts extended the doctrine "to include commissioned works created by independent contractors." Id. In these situations, courts would "treat[] the contractor as an employee and creat[e] a presumption of copyright ownership in the commissioning party at whose 'instance and expense' the work was done." Id.; see also 1 Nimmer on Copyright § 5.03[B][1][a][i] (noting that, under the 1909 Act, "the courts expanded the definition of 'employer' to include a hiring party who had the right to control or supervise the artist's work"). In practice, this test often favors the hiring party. See Roger E. Schechter & John R. Thomas, Principles of Copyright Law § 5.2.1 (1st ed. 2010) (noting that, "[e]ven in situations very far removed from the typical employer-employee case," the test "was often satisfied because the hiring party was the one who was the 'motivating factor' for the project and who had at least a theoretical 'right to supervise' the work"). In the Copyright Act of 1976, Congress introduced a more explicit, two-part framework that applied to works created on or after January 1, 1978 (the effective date of the Act). 17 U.S.C. § 101; Forward, 985 F.2d at 605. The 1976 Act defined a "work made for hire" as either: (1) a work prepared by an employee within the scope of his or her employment; or(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.17 U.S.C. § 101. Markham Concepts, Inc. v. Hasbro, Inc., 1 F. 4th 74 (1st Cir. 2021)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret, and apply provisions of Title IX of the Education Amendments Act of 1972. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals. * * * Title IX provides: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." 20 U.S.C. § 1681(a). Though the statute contains no express private right of action, the Supreme Court has held that individuals may sue funding recipients for violating Title IX. See Cannon v. Univ. of Chi., 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). And the Court has held that this implied right of action includes retaliation claims, explaining that "when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional 'discrimination' 'on the basis of sex, ' in violation of Title IX." Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). * * * The Supreme Court's decision in Jackson did not spell out the elements of a Title IX retaliation claim, and no published case in this circuit has decided the question. In unpublished authority, however, we have analogized to Title VII retaliation claims, stating that a Title IX plaintiff must show "that (1) [s]he engaged in protected activity, (2) [the funding recipient] knew of the protected activity, (3) [s]he suffered an adverse school-related action, and (4) a causal connection exists between the protected activity and the adverse action." Gordon v. Traverse City Area Pub. Schs., 686 F. App'x 315, 320 (6th Cir. 2017). Our sister circuits apply similar tests. See, e.g., Emeldi v. Univ. of Or., 698 F.3d 715, 724 (9th Cir. 2012); Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89 (2d Cir. 2011); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002). Bose v. Bea, 947 F. 3d 983 (6th Cir. 2020)

THIS CASEBOOK is the portable edition of the title. It contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding Medicare fraud. * * * Medicare is a health insurance program overseen by the federal government and is intended for people of age 65 or older or people with a qualifying disability. Medicare is funded through taxpayer contributions and small recipient premiums. Patients who qualify for Medicare benefits have services furnished by a Medicare provider like a doctor, hospital, or home health agency. Once a service is performed, that provider can bill Medicare and claim payment. Medicare contractors designated by the respective states will then review claims submitted for payment. Some claims take two weeks to process, while others may take up to a month.Claim reviewers look to the following five components for the legitimacy of claims: (1) the patient's entitlement to Medicare; (2) proper enrollment of the provider; (3) the provision of services; (4) compliance with coverage rules; and (5) proper reporting of records. Because Medicare receives such a high volume of claims, however, rarely do all claims receive a complete and thorough review. Categorically, Medicare does not pay for claims based on kickbacks or bribes. See 42 U.S.C. § 1320-7b(b). US v. Nerey, 877 F. 3d 956 (11th Cir. 2017)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply the doctrine of Chevron deference. * * * [Courts] often review an agency's interpretation of a statute it is charged with implementing under the framework of Chevron. See Mylan Labs., Inc. v. Thompson, 389 F.3d 1272, 1279 (D.C. Cir. 2004) (citing Chevron, 467 U.S. 837, 104 S.Ct. 2778). Under that framework, we first determine whether Congress "has directly spoken to the precise question at issue," in which case we "give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. If the statute is "silent or ambiguous," we consider "whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778.But not all agency interpretations fall within Chevron's framework. The Supreme Court has clarified that "[d]eference in accordance with Chevron . . . is warranted only 'when it appears that Congress p.483 delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.'" Gonzales v. Oregon, 546 U.S. 243, 255-56, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (quoting United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)). In addition, we generally do not apply Chevron deference when the statute in question is administered by multiple agencies. See, e.g., DeNaples v. Office of Comptroller of Currency, 706 F.3d 481, 487 (D.C. Cir. 2013); Proffitt v. FDIC, 200 F.3d 855, 860 (D.C. Cir. 2000).An agency interpretation that falls outside Chevron "is 'entitled to respect' only to the extent it has the 'power to persuade.'" Gonzales, 546 U.S. at 256, 126 S.Ct. 904 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)); see also Mead, 533 U.S. at 234-35, 121 S.Ct. 2164.Kaufman v. Nielsen, 896 F. 3d 475 (DC Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and discuss antitrust doctrine. * * * Section 1 of the Sherman Act - which prohibits "[e]very contract, combination... or conspiracy, in restraint of trade or commerce," 15 U.S.C. § 1 - "applies only to concerted action that restrains trade." Am. Needle, 560 U.S. at 190, 130 S.Ct. 2201. By contrast, § 2 of the Sherman Act - which makes it illegal to "monopolize, or attempt to monopolize, or combine or conspire ... to monopolize any part of the trade or commerce," 15 U.S.C. § 2 - "covers both concerted and independent action, but only if that action 'monopolizes'... or 'threatens actual monopolization, '" Am. Needle, 560 U.S. at 190, 130 S.Ct. 2201 (alteration and citations omitted), or at least is intended to monopolize, see Auraria Student Housing at the Regency, LLC v. Campus Vill. Apartments, LLC, 843 F.3d 1225, 1233 (10th Cir. 2016). See also Multistate Legal Studies, Inc. v. Harcourt Brace Jovanovich Legal & Prof'l Publ'ns, Inc., 63 F.3d 1540, 1545 (10th Cir. 1995) ("Section 1 of the Act focuses on the anticompetitive behavior of joint actors ... [while] [s]ection 2 applies to unilateral as well as joint action...." (citation omitted)).Thus, like § 1, § 2 embodies a conspiracy claim that requires "concerted action by a plurality of actors." See Bell v. Fur Breeders Agric. Coop., 348 F.3d 1224, 1232 (10th Cir. 2003) (section 1); Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1028 (10th Cir. 2002) (section 2). The elements of a § 2 conspiracy claim are "conspiracy, specific intent to monopolize, and overt acts done in furtherance of the conspiracy." Full Draw Prods., 182 F.3d at 756 (citation omitted). Unlike § 1, however, § 2 - through its prohibitions on monopolization and attempted monopolization - also "can be violated by a single economic unit without requiring any contract, combination, or conspiracy." Cohlmia, 693 F.3d at 1280. The elements of a § 2 monopolization claim are "(1) monopoly power in the relevant market; (2) willful acquisition or maintenance of this power through exclusionary conduct; and (3) harm to competition." Lenox II, 762 F.3d at 1119. And the elements of a § 2 attempted monopolization claim are (1) "predatory or anticompetitive conduct," (2) "a specific intent to monopolize," and (3) "a dangerous probability of achieving monopoly power." Id. at 1129. * * * Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F. 3d 1221 (10th Cir. 2017)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding software patents and other computer-implemented method patents. * * * Section 101 provides that a patent may be obtained for "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." 35 U.S.C. § 101. The Supreme Court has long recognized, however, that § 101 implicitly excludes "laws of nature, natural phenomena, and abstract ideas" from the realm of patent-eligible subject matter, as monopolization of these "basic tools of scientific and technological work" would stifle the very innovation that the patent system aims to promote. Alice Corp. v. CLS Bank Int'l, ___ U.S. ___, 134 S.Ct. 2347, 2354, 189 L.Ed.2d 296 (2014) (quoting Ass'n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 133 S.Ct. 2107, 2116, 186 L.Ed.2d 124 (2013)); see also Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 132 S.Ct. 1289, 1294-97, 182 L.Ed.2d 321 (2012); Diamond v. Diehr, 450 U.S. 175, 185, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981). Finjan, Inc. v. Blue Coat Systems, Inc., 879 F. 3d 1299 (Fed. Cir. 2018). The Supreme Court has instructed us to use a two-step framework to "distinguish[ ] patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts." Alice, 134 S.Ct. at 2355. At the first step, we determine whether the claims at issue are "directed to" a patent-ineligible concept. Id. If they are, we then "consider the elements of each claim both individually and 'as an ordered combination' to determine whether the additional elements 'transform the nature of the claim' into a patent-eligible application." Id. (quoting Mayo, 132 S.Ct. at 1298). This is the search for an "inventive concept" - something sufficient to ensure that the claim amounts to "significantly more" than the abstract idea itself. Id. (quoting Mayo, 132 S.Ct. at 1294). Finjan, Inc. v. Blue Coat Systems, Inc., ibid.

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding the doctrine of honest-services fraud. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * It is not a defense to an honest-services fraud charge to claim that a public official would have lawfully performed the official action in question even without having accepted a thing of value. * * * A conviction for honest-services wire fraud requires proof that the defendant used wire communications in interstate commerce to carry out a "scheme or artifice to defraud," 18 U.S.C. § 1343, by depriving another of "the intangible right of honest services," id. § 1346. In Skilling, the Supreme Court construed § 1346 narrowly and held that honest-services fraud encompasses only bribery and kickback schemes. 561 U.S. at 408-09, 130 S.Ct. 2896. To define the scope of the honest-services statute's proscription of bribes and kickbacks, the Skilling Court directed courts to look to, inter alia, federal statutes defining similar crimes, such as 18 U.S.C. § 201(b), the principal federal bribery statute. See id. at 412-13 & n. 45, 130 S.Ct. 2896. * * * We follow the Supreme Court's direction in Skilling and look to § 201(b) to give substance to the prohibition on honest-services fraud. In United States v. Valle, we held that an official may be convicted of bribery under § 201(b)(2) "if he has corruptly entered into a quid pro quo, knowing that the purpose behind the payment that he has ... agreed to receive[] is to induce or influence him in an official act, even if he has no intention of actually fulfilling his end of the bargain." 538 F.3d 341, 347 (5th Cir.2008). Accordingly, pursuant to Valle, a conviction for bribery under § 201(b)(2) does not require proof that the official intended to be influenced in his official actions. See id. Viewed through Skilling's lens, Valle instructs that honest-services fraud also does not require such proof. See Skilling, 561 U.S. at 412, 130 S.Ct. 2896; Valle, 538 F.3d at 347. US v. Nagin, 810 F. 3d 348 (5th Cir. 2016)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Freedom of Information Act. * * * The Freedom of Information Act provides that federal agencies, "upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ... shall make the records promptly available." 5 U.S.C. § 552(a)(3)(A) (emphasis added). To ensure this mandate did not become a dead letter, Congress adopted a two-part approach. First, Congress imposed a set of requirements on federal agencies: It established timetables for agencies to respond to requests as well as procedures for agencies to obtain additional time, and required adoption of records management systems to facilitate "prompt" responses. Second, Congress provided members of the public whose records requests were denied a right to an administrative appeal and a right to seek judicial relief. Judicial Watch, Inc. v. US Dept. of Homeland Sec., 895 F. 3d 770 (DC Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals opinions that review class certification decisions under Rule 23 of the Federal Rules of Civil Procedure. * * * A representative plaintiff may sue on behalf of a class when the plaintiff affirmatively demonstrates the proposed class meets the four threshold requirements of Federal Rule of Civil Procedure 23(a): numerosity, commonality, typicality, and adequacy of representation. In re Hyundai and Kia Fuel Econ. Litig., 881 F.3d 679, 690 (9th Cir. 2018) (citing Comcast Corp. v. Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013)); Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2016). Additionally, a plaintiff seeking certification under Rule 23(b)(3) must demonstrate that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." In re Hyundai, 881 F.3d at 690-91 (quoting Fed. R. Civ. P. 23(b)(3)). Sali v. Corona Regional Medical Center, 889 F. 3d 623 (9th Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding First Amendment retaliation claims. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * Section 1983 allows plaintiffs to sue municipal entities (and municipal officials in their personal capacities) for deprivations of constitutional rights. 42 U.S.C. § 1983; see Nagle v. Marron, 663 F.3d 100, 116 (2d Cir. 2011). One right enforceable through section 1983 is the First Amendment's guarantee of freedom of speech, which "prohibits [the government] from punishing its employees in retaliation for the content of their protected speech." Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 2001); see also Garcetti v. Ceballos, 547 U.S. 410, 413, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ("It is well settled that a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." (internal quotation marks omitted)). To state a First Amendment retaliation claim, a plaintiff "must plausibly allege that (1) his or her speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him or her; and (3) there was a causal connection between this adverse action and the protected speech." Montero v. City of Yonkers, 890 F.3d 386, 394 (2d Cir. 2018) (cleaned up). A public employee's speech is protected by the First Amendment when "the employee spoke as a private citizen and . . . the speech at issue addressed a matter of public concern." Id. at 393. "To constitute speech on a matter of public concern, an employee's expression must be fairly considered as relating to any matter of political, social, or other concern to the community." Id. at 399 (internal quotation marks omitted). But speech that is "calculated to redress personal grievances-even if touching on a matter of general importance-does not qualify for First Amendment protection." Id. at 400 (internal quotation marks omitted). Likewise, the First Amendment does not protect speech that "principally focuses on an issue that is personal in nature and generally related to the speaker's own situation." Id. at 399 (cleaned up). Quinones v. City of Binghamton, 997 F. 3d 461 (2nd Cir. 2021)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding collective bargaining agreements. * * * Under section 8(a)(5) of the National Labor Relations Act, an employer commits an unfair labor practice if it "refuse[s] to bargain collectively with the representatives of [its] employees." 29 U.S.C. § 158(a)(5). Under the NLRA, collective bargaining consists of a "mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment ...." Id. § 158(d). The subjects of mandatory bargaining are broad and the Supreme Court has explained that "Congress deliberately left the words 'wages, hours, and other terms and conditions of employment' without further definition, for it did not intend to deprive the Board of the power further to define those terms in light of specific industrial practices." First Nat'l Maint. Corp. v. NLRB, 452 U.S. 666, 675, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981) (quoting 29 U.S.C. § 158(d)). Intern. Longshore & Warehouse Union v. NLRB, 890 F. 3d 1100 (DC Cir. 2018).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding hostile work environment claims. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * A hostile environment that violates Title VII "exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (internal quotation marks and brackets omitted). Thus, to state a hostile work environment claim, [the plaintiff] must allege that: (1) he "experienced unwelcome harassment"; (2) the harassment was based on his race or protected activity; (3) "the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere"; and (4) "there is some basis for imposing liability on the employer." Bass, 324 F.3d at 765. Regarding the third element, "[w]hether the environment is objectively hostile or abusive is judged from the perspective of a reasonable person in the plaintiff's position." Boyer-Liberto, 786 F.3d at 277 (internal quotation marks omitted). "That determination is made by looking at all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. (internal quotation marks omitted). "[R]ude treatment," "callous behavior," or "routine difference of opinion and personality conflict," without more, will not suffice. E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-316 (4th Cir. 2008) (internal quotation marks omitted). Holloway v. Maryland, 32 F. 4th 293 (4th Cir. 2022)

This casebook contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding cyber law. * * * When it passed the Stored Communications Act almost thirty years ago, Congress had as reference a technological context very different from today's Internet-saturated reality. This context affects our construction of the statute now. One historian of the Internet has observed that "before 1988, the New York Times mentioned the Internet only once - in a brief aside." Roy Rosenzweig, Wizards, Bureaucrats, Warriors, and Hackers: Writing the History of the Internet, 103 Am. Hist. Rev. 1530, 1530 (1998). The TCP/IP data transfer protocol - today, the standard for online communication - began to be used by the Department of Defense in about 1980. See Leonard Kleinrock, An Early History of the Internet, IEEE Commc'ns Mag. 26, 35 (Aug. 2010). The World Wide Web was not created until 1990, and we did not even begin calling it that until 1993. Daniel B. Garrie & Francis M. Allegra, Plugged In: Guidebook to Software and the Law § 3.2 (2015 ed.). Thus, a globally-connected Internet available to the general public for routine e-mail and other uses was still years in the future when Congress first took action to protect user privacy. See Craig Partridge, The Technical Development of Internet Email, IEEE Annals of the Hist. of Computing 3, 4 (Apr.-June 2008). Matter of Warrant Search Certain E-mail, 829 F. 3d 197 (2nd Cir. 2016)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues raised when law enforcement officers assert the affirmative defense of qualified immunity. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals. * * * "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). As the Supreme Court has explained, "[q]ualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Id. * * * "The qualified immunity analysis entails two general steps, which can be considered in any order." Godawa v. Byrd, 798 F.3d 457, 462-63 (6th Cir. 2015) (citing Pearson, 555 U.S. at 236, 129 S.Ct. 808). "First, taken in the light most favorable to the party asserting the injury, do the facts alleged show that the officer's conduct violated a constitutional right? Second, is the right clearly established?" Seales v. City of Detroit, 724 F. App'x 356, 359 (6th Cir. 2018) (quoting Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006)). "To qualify as clearly established, [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Kindl v. City of Berkley, 798 F.3d 391, 398 (6th Cir. 2015) (alteration in original) (internal quotation marks omitted) (quoting Brown v. Lewis, 779 F.3d 401, 412 (6th Cir. 2015))."[T]he plaintiff bears the burden of showing that an officer is not entitled to the defense of qualified immunity." Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016) (citing Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015)). Rafferty v. Trumbull County, Ohio, 915 F. 3d 1087 (6th Cir. 2019)

THIS CASEBOOK contains a selection of U. S. Supreme Court decisions that analyze and discuss issues surrounding election law and the right to vote. This Volume covers cases spanning from 1976 to 2010. Volume I covers cases spanning from 1946 to 1974.The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e. g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) ("[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment"). It must be remembered that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Reynolds v. Sims, 377 U. S. 533, 555 (1964). Bush v. Gore, 531 US 98 (2000).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and discuss provisions of the National Labor Relations Act. * * * First, section 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed [under section 7 of the (National Labor Relations Act)]." 29 U.S.C. § 158(a)(1). Section 7, in turn, provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157. * * * Second, section 8(a)(3) "makes it an unfair labor practice for an employer to discriminate against employees 'in regard to hire or tenure of employment or any term or condition of employment to . . . discourage membership in any labor organization.'" Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 955 (D.C. Cir. 1988) (quoting 29 U.S.C. § 158(a)(3)). * * * Third, section 8(a)(4) makes it an unfair labor practice for an employer "to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under [the National Labor Relations Act]." 29 U.S.C. § 158(a)(4). * * * And, finally, section 8(a)(5) makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." 29 U.S.C. § 158(a)(5). * * * Murray American Energy, Inc. v. National Labor Relations Board, (DC Cir. 2019)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Fair Labor Standards Act. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals. * * * The FLSA states that "no employer shall employ any of his employees . . . for a workweek longer than forty hours" without paying one-and-one-half times the regular rate for any excess hours. 29 U.S.C. § 207. The critical issue is whether Karlson was an employee, as opposed to an independent contractor, when working as an APS process server. Like many federal statutes, the FLSA defines "employee," in circular fashion, as "any individual employed by an employer." § 203(e)(1). But the FLSA also defines "employ" as meaning "to suffer or permit to work," § 203(g), a broad definition derived from child labor statutes. See Rutherford Food Corp. v. McComb, 331 U.S. 722, 728, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). While FLSA wage and hour requirements do not apply to true independent contractors, see id. at 729, 67 S.Ct. 1473, this broad definition of employ "stretches the meaning of 'employee' to cover some parties who might not qualify as such under a strict application of traditional agency law principles." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). Karlson v. Action Process Serv. & Private Invest., 860 F. 3d 1089 (8th Cir. 2017)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the SEC Rule 10b-5. * * * To plead a primary violation of SEC Rule 10b-5, a complaint must allege "1) a material misrepresentation or omission by the defendant [falsity]; 2) scienter; 3) a connection between the misrepresentation or omission and the purchase or sale of a security; 4) reliance upon the misrepresentation or omission; 5) economic loss; and 6) loss causation." In re Rigel Pharm., Inc. Sec. Litig., 697 F.3d at 876. * * * The district court's dismissal of Count I was based on the elements of falsity and materiality. Accordingly, the analysis here is limited to those issues. In re Gilead Scis. Sec. Litig., 536 F.3d at 1055 (limiting consideration of Rule 10b-5 claim to sole issue the district court addressed because, generally, "a federal appellate court does not consider an issue not passed upon below"). * * * Falsity is alleged when a plaintiff points to defendant's statements that directly contradict what the defendant knew at that time. See In re Atossa Genetics Inc. Sec. Litig., 868 F.3d 784, 794-96 (9th Cir. 2017) (finding that plaintiff pled falsity where defendants said a drug had "gone through all of the FDA clearance process," but it had not received FDA clearance). Indeed, "[t]o be misleading, a statement must be capable of objective verification." Retail Wholesale & Dep't Store Union Local 338 Ret. Fund v. Hewlett-Packard Co., 845 F.3d 1268, 1275 (9th Cir. 2017). * * * Even if a statement is not false, it may be misleading if it omits material information. In re NVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1054 (9th Cir. 2014). "Disclosure is required ... only when necessary 'to make ... statements made, in the light of the circumstances under which they were made, not misleading.'" Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 44, 131 S.Ct. 1309, 179 L.Ed.2d 398 (2011) (quoting 17 C.F.R. § 240.10b-5(b)). As such, "companies can control what they have to disclose under these provisions by controlling what they say to the market." Id. at 45, 131 S.Ct. 1309. "But once defendants [choose] to tout positive information to the market, they [are] bound to do so in a manner that wouldn't mislead investors, including disclosing adverse information that cuts against the positive information." Schueneman v. Arena Pharm., Inc., 840 F.3d 698, 705-06 (9th Cir. 2016) (quotation marks and citation omitted). * * * Whether its allegations concern an omission or a misstatement, a plaintiff must allege materiality. "[A] misrepresentation or omission is material if there is a substantial likelihood that a reasonable investor would have acted differently if the misrepresentation had not been made or the truth had been disclosed." Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). * * * The Supreme Court has eschewed brightline tests for materiality. Matrixx Initiatives, 563 U.S. at 46, 131 S.Ct. 1309 (citing Basic Inc. v. Levinson, 485 U.S. 224, 236, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988)). At a minimum, "[p]laintiffs' allegations must suffice to raise a reasonable expectation that discovery will reveal evidence satisfying the materiality requirement, and to allow the court to draw the reasonable inference that the defendant is liable." In re Atossa Genetics Inc. Sec. Litig., 868 F.3d at 794. * * * Khoja v. Orexigen Therapeutics, Inc., 899 F. 3d 988 (9th Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding copyright in musical works. * * * In order to prove copyright infringement, a plaintiff must show "(1) that he owns a valid copyright in his [work], and (2) that [the defendants] copied protected aspects of the [work's] expression." See Rentmeester v. Nike, Inc., 883 F.3d 1111, 1116-17 (9th Cir. 2018) (citing Feist Publ'ns, Inc. v. Rural Telephone Serv. Co., Inc., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)). * * * Whether [a d]efendant[] copied protected expression contains two separate and distinct components: "copying" and "unlawful appropriation." Rentmeester, 883 F.3d at 1117. A plaintiff must be able to demonstrate that a defendant copied his work, as independent creation is a complete defense to copyright infringement. See Feist Publ'ns, 499 U.S. at 345-46, 111 S.Ct. 1282; see also Rentmeester, 883 F.3d at 1117. In cases [ ] where there is no direct evidence of copying, the plaintiff "can attempt to prove it circumstantially by showing that the defendant had access to the plaintiff's work and that the two works share similarities probative of copying." Rentmeester, 883 F.3d at 1117. "When a high degree of access is shown," a lower amount of similarity is needed to prove copying. Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1178 (9th Cir. 2003) (citation omitted). "To prove copying, the similarities between the two works need not be extensive, and they need not involve protected elements of the plaintiff's work. They just need to be similarities one would not expect to arise if the two works had been created independently." Rentmeester, 883 F.3d at 1117. * * * To prove "unlawful appropriation" a higher showing of substantial similarity is needed. Id. The works must share substantial similarities and those similarities must involve parts of the plaintiff's work that are original and therefore protected by copyright. Id. To determine whether an allegedly infringing work is substantially similar to the original work, we employ the extrinsic and intrinsic tests. The extrinsic test is an objective comparison of protected areas of a work. This is accomplished by "breaking the works down into their constituent elements, and comparing those elements" to determine whether they are substantially similar. Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). Only elements that are protected by copyright are compared under the extrinsic test. Id. The intrinsic test is concerned with a subjective comparison of the works, as it asks "whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar." Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000) (citation omitted). Skidmore v. Zeppelin, 905 F. 3d 1116 (9th Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding municipal liability under 42 U.S.C. § 1983. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * Title 42 U.S.C. § 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]A municipality or other local government may be liable under § 1983 if the governmental body itself "subjects" a person to a deprivation of rights or "causes" a person "to be subjected" to such deprivation. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 692 (1978). But, under § 1983, local governments are responsible only for "their own illegal acts." Pembaur v. Cincinnati, 475 U.S. 469, 471 (1986) (emphasis in original) (citing Monell, 436 U.S. at 665-683). They are not vicariously liable under § 1983 for their employees' actions. Id. at 478.Municipal liability under § 1983 has three elements: (1) a policymaker; (2) an official policy; and (3) a violation of a constitutional right whose "moving force" is the policy or custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell, 436 U.S. at 694). Requiring satisfaction of these elements is "necessary to distinguish individual violations perpetrated by local government employees from those that can be fairly identified as actions of the government itself." Id.An official policy "usually exists in the form of written policy statements, ordinances, or regulations, but may also arise in the form of a widespread practice that is 'so common and well-settled as to constitute a custom that fairly represents municipal policy.'" James v. Harris Cty., 577 F.3d 612, 617 (5th Cir. 2009) (quoting Piotrowski, 237 F.3d at 579). Whatever its form, to yield municipal liability under § 1983, the policy must have been the "moving force" behind the plaintiff's constitutional violation. Piotrowski, 237 F. 3d at 580 (quoting Monell, 436 U.S. at 694). In other words, a plaintiff "must show direct causation, i.e., that there was 'a direct causal link' between the policy and the violation." James, 577 F.3d at 617 (quoting Piotrowski, 237 F.3d at 580). "Where an official policy or practice is unconstitutional on its face, it necessarily follows that a policymaker was not only aware of the specific policy, but was also aware that a constitutional violation [would] most likely occur." Burge v. St. Tammany Par., 336 F.3d 363, 370 (5th Cir. 2003) (citing Piotrowski, 237 F.3d at 579). Covington v. City of Madisonville, (5th Cir. 2020)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply the Rooker-Feldman doctrine. * * * Rooker-Feldman's jurisdictional bar protects the Supreme Court's certiorari jurisdiction under Section 1257 of Title 28 of the United States Code. It ensures that the United States Supreme Court is the only federal court to hear appeals from judgments rendered by the highest court of a state (or, as here, the District of Columbia). See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Tr. Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); see also Gray v. Poole, 275 F.3d 1113, 1119 (D.C. Cir. 2002). Operationally, the Rooker-Feldman doctrine "is confined to cases of the kind from which the doctrine acquired its name: cases brought by [i] state-court losers [ii] complaining of injuries caused by state-court judgments rendered before the [federal] district court proceedings commenced and [iii] inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). The Supreme Court has repeatedly emphasized that the doctrine is "narrow," applicable to bar only complaints that meet those listed conditions. Id.; see Skinner v. Switzer, 562 U.S. 521, 531, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011); Lance v. Dennis, 546 U.S. 459, 464, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006); see also Singletary v. D.C., 766 F.3d 66, 71 (D.C. Cir. 2014). Indeed, the only two cases in which the Supreme Court has ever applied the doctrine to dismiss an action are the Rooker and Feldman namesake cases themselves. See Exxon Mobil Corp., 544 U.S. at 283, 125 S.Ct. 1517. Croley v. Joint Committee on Judicial Admin., 895 F. 3d 22 (DC Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding pharmaceutical patents. * * * Claim limitations directed to printed matter are not entitled to patentable weight unless the printed matter is functionally related to the substrate on which the printed matter is applied. E.g., In re DiStefano, 808 F.3d 845, 848 (Fed. Cir. 2015); In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983). While early cases developing this doctrine applied it to claims literally encompassing "printed" materials, e.g., In re Russell, 48 F.2d 668, 669 (CCPA 1931) (claim to phonetically-arranged directory was printed matter), our cases have not limited the doctrine to that particular factual context, e.g., King Pharm., Inc. v. Eon Labs, Inc., 616 F.3d 1267, 1279 (Fed. Cir. 2010) (holding that a claimed step of informing someone about an inherent property of a method was printed matter). Rather, we have held that a claim limitation is directed to printed matter "if it claims the content of information." Di-Stefano, 808 F.3d at 848. * * * Claim limitations directed to the content of information and lacking a requisite functional relationship are not entitled to patentable weight because such information is not patent eligible subject matter under 35 U.S.C. § 101. See AstraZeneca LP v. Apotex, Inc., 633 F.3d 1042, 1064 (Fed. Cir. 2010) ("This court has generally found printed matter to fall outside the scope of § 101."); In re Chatfield, 545 F.2d 152, 157 (CCPA 1976) ("Some inventions, however meritorious, do not constitute patentable subject matter, e.g., printed matter...."); cf. Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1349-50 (Fed. Cir. 2014) ("Data in its ethereal, non-physical form is simply information that does not fall under any of the categories of eligible subject matter under section 101."); Guthrie v. Curlett, 10 F.2d 725, 726-27 (2d Cir. 1926) (stating that the plot of a printed work may be copyrighted but not patented). While the doctrine's underlying rationale is in subject matter eligibility, its application has been in analyzing other patentability requirements, including novelty under 35 U.S.C. § 102, e.g., King, 616 F.3d at 1279, and nonobviousness under 35 U.S.C. § 103, e.g., In re Huai-Hung Kao, 639 F.3d 1057, 1072-74 (Fed. Cir. 2011). Praxair Distribution, Inc. v. Mallinckrodt Hosp., 890 F. 3d 1024 (Fed. Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply state action doctrine. * * To state a claim under Section 1983, a plaintiff must show that the alleged constitutional deprivation at issue occurred because of action taken by the defendant "under color of . . . state law." Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). Section 1983's "color-of-law prerequisite is synonymous with the more familiar state-action requirement" applicable to Fourteenth Amendment claims, "and the analysis for each is identical." Pitt Cty. Mem'l Hosp., 572 F.3d at 180. Both inquiries demand that "the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State." Holly v. Scott, 434 F.3d 287, 292 (4th Cir. 2006) (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). "[T]here is no specific formula for determining whether state action is present." Id. at 292 (internal quotation marks omitted). Rather, "[w]hat is fairly attributable [to the state]"-i.e., what constitutes action under color of state law-"is a matter of normative judgment, and the criteria lack rigid simplicity." Id. (internal quotation marks omitted). Courts must examine the "totality of the circumstances," id. (internal quotation marks omitted), to determine if the action at issue "bore a 'sufficiently close nexus' with the State to be 'fairly treated as that of the State itself, '" Rossignol, 316 F.3d at 525 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)).Although no one factor is determinative, this Court has held that a defendant's purportedly private actions bear a "sufficiently close nexus" with the State to satisfy Section 1983's color-of-law requirement when the defendant's challenged "actions are linked to events which arose out of his official status." Id. at 524. When a defendant's "status" as a public official "enabled [her] to execute [a challenged action] in a manner that private citizens never could have," then the action also is more likely to be treated as attributable to the state. Id. at 526; see also Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995) ("[S]ection 1983 is . . . implicated. . . [when] the conduct is such that the actor could not have behaved in that way but for the authority of his office."); Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 343 (4th Cir. 2000) (holding that challenged conduct is more likely to amount to state action when "the injury caused is aggravated in a unique way by the incidents of governmental authority" (internal quotation marks omitted)). Likewise, an official's conduct is more likely to amount to state action when it "occurs in the course of performing an actual or apparent duty of his office." Martinez, 54 F.3d at 986. And the challenged action of a defendant governmental official is likely to be treated as taken under color of law when the official "use[d] the power and prestige of his state office to damage the plaintiff." Harris v. Harvey, 605 F.2d 330, 337 (7th Cir. 1979). In the context of an alleged First Amendment violation, in particular, this Court has found that a challenged action by a governmental official is fairly attributable to the state when "the sole intention" of the official in taking the action was "to suppress speech critical of his conduct of official duties or fitness for public office." Rossignol, 316 F.3d at 524. Davison v. Randall, 912 F. 3d 666 (4th Cir. 201

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply the doctrine of Article III Standing. * * * To establish its Article III standing, [a plaintiff] must satisfy three requirements. First, it "must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotation marks omitted). Second, "there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant."Id. (alterations adopted) (internal quotation marks omitted). Third, "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."Id. at 561 (internal quotation marks omitted). * * * Each element of standing is "an indispensable part of the plaintiff's case" and "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id. "While the proof required to establish standing increases as the suit proceeds, the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed." Davis v. Fed. Election Comm'n, 554 U.S. 724, 734 (2008) (citation omitted). * * * To satisfy its burden at the pleading stage, a plaintiff must "clearly allege facts demonstrating each element," Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (alteration adopted) (citation and internal quotation marks omitted), and we evaluate standing on a motion to dismiss based on the facts alleged in the complaint, Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir. 2013). To adequately allege injury in fact, it is not enough that a complaint "'sets forth facts from which we could imagine an injury sufficient to satisfy Article III's standing requirements, ' since 'we should not speculate concerning the existence of standing, nor should we imagine or piece together an injury sufficient to give plaintiff standing when it has demonstrated none.'" Bochese v. Town of Ponce Inlet, 405 F.3d 964, 976 (11th Cir. 2005) (quoting Miccosukee Tribe of Indians v. Fla. State Athletic Comm'n, 226 F.3d 1226, 1229-30 (11th Cir. 2000)). "If the plaintiff fails to meet its burden, this court lacks the power to create jurisdiction by embellishing a deficient allegation of injury." Id. Aaron Private Clinic Management LLC v. Berry, (11th Cir. 2019)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and discuss First Amendment commercial speech doctrine. * * * "The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, or that proposes an illegal transaction. Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest." Id. at 638, 105 S.Ct. 2265 (citing Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343) (other internal citations omitted).The regulation of commercial speech is subject to different levels of review, depending on the nature of the law. In Central Hudson, the Court established that a restriction on commercial speech is subject to intermediate scrutiny, that is, a determination of whether the restriction directly advances a substantial governmental interest and is not overly restrictive. 447 U.S. at 564, 100 S.Ct. 2343. In Zauderer, however, the Court created an exception that an informational disclosure law- as opposed to a prohibition on speech- was subject to rational review, that is, a determination of whether the required disclosure is reasonably related to the state's interest. 471 U.S. at 651, 105 S.Ct. 2265. Safelite Group, Inc. v. Jepsen, 764 F. 3d 258 (2nd Cir. 2014).

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply the filed-rate doctrine. * * * Section 206 defines FERC's authority when an existing rate is found unjust, unreasonable, unduly discriminatory, or preferential. 16 U.S.C. § 824e. This includes two main tools at FERC's disposal. First, Section 206(a) authorizes FERC to "fix" rates prospectively, after it concludes that a rate is inappropriate upon a complaint by a market participant or on FERC's own impetus. See id. § 824e(a); Xcel, 815 F.3d at 950. Second, Section 206(b) permits FERC to order refunds where the previous rate was unfairly high, effectively setting the rate as of the date that the Section 206 proceeding began - either when FERC instituted an investigation or the date of the complaint, if instigated by a third party. 16 U.S.C. § 824e(b). However, no concomitant authority exists to retroactively correct rates that were too low. See Fed. Power Comm'n v. Sierra Pac. Power Co., 350 U.S. 348, 353, 76 S.Ct. 368, 100 L.Ed. 388 (1956) (noting that "[the Section 206] power is limited to prescribing the rate 'to be thereafter observed' and thus can effect no change prior to the date of the order"). This rule against retroactive rate increases precludes FERC from ordering remedies that accomplish a higher rate for a past period. In turn, the filed-rate doctrine requires market participants to abide by the rates set: "utilities are forbidden to charge any rate other than the one on file with the Commission." W. Deptford Energy, LLC v. Fed. Energy Regulatory Comm'n, 766 F.3d 10, 12 (D.C. Cir. 2014). The "rule against retroactive ratemaking" and the filed-rate doctrine may thus be understood as "corollar[ies]" that make static the rates paid for energy, once established. NSTAR Elec. & Gas Corp. v. Fed. Energy Regulatory Comm'n, 481 F.3d 794, 800 (D.C. Cir. 2007). See also Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577, 101 S.Ct. 2925, 69 L.Ed.2d 856 (1981) (explaining the development of the filed-rate doctrine in the context of the Natural Gas Act). * * * Verso Corp. v. FERC, 898 F. 3d 1 (DC Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Sherman Antitrust Act. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * For an arrangement to be a conspiracy under § 1, it "must embody concerted action." Am. Needle, 560 U.S. at 191, 130 S.Ct. 2201. Concerted action exists where there is an agreement between "separate economic actors pursuing separate economic interests." Id. at 195, 130 S.Ct. 2201 (internal quotation marks omitted). The fact that the co-conspirators are capable, due to their separateness, of acting in concert is not sufficient. Proof of a conspiracy is required. Capital Imaging Assocs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537, 545 (2d Cir. 1993).A plaintiff must offer "direct or circumstantial evidence that reasonably tends to prove ... a conscious commitment to a common scheme designed to achieve an unlawful objective." Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 768, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). Rarely do co-conspirators plainly state their purpose. As a result, courts often must evaluate circumstantial evidence of a conspiracy by weighing "plus factors, which, when viewed in conjunction with the parallel acts, can serve to allow a fact-finder to infer a conspiracy." United States v. Apple, Inc., 791 F.3d 290, 315 (2d Cir. 2015) (citation and internal quotation marks omitted). In Monsanto, the Supreme Court noted that courts should look for evidence that "tends to exclude the possibility that the [defendant was] acting independently." Monsanto, 465 U.S. at 764, 104 S.Ct. 1464. In Matsushita, the Supreme Court elaborated on what this meant: "[C]onduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).* * *Only unreasonable restraints on competition violate § 1 of the Sherman Act. Courts use one of two tests here. "[A] restraint may be adjudged unreasonable either because it fits within a class of restraints that has been held to be 'per se' unreasonable, or because it violates what has come to be known as the 'Rule of Reason.'" Ind. Fed'n of Dentists, 476 U.S. at 457-58, 106 S.Ct. 2009. Regulation of league sports is a textbook example of when the rule of reason applies. See Nat'l Collegiate Athletic Ass'n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 101, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984). North Amer. Soccer League v. US Soccer Feder., 883 F. 3d 32 (2nd Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Federal Tort Claims Act. * * * "As a sovereign, the United States is immune from suit unless it consents to be sued." White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010). The FTCA is "a limited waiver of the sovereign immunity of the United States," Miller v. Phila. Geriatric Ctr., 463 F.3d 266, 270 (3d Cir. 2006), that provides that: The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. * * *28 U.S.C. § 2674; see also Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997) ("The Federal Torts [sic] Claims Act is a partial abrogation of the federal government's sovereign immunity that permits suits for torts against the United States.")."To make a claim under the FTCA, a claimant first must file her claim with the administrative agency allegedly responsible for her injuries." Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009). The statute provides: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. Sconiers v. US, 896 F. 3d 595 (3rd Cir. 2018)

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply Commerce Clause doctrine. * * * Implicit in the constitutional allocation of the "Power ... To regulate Commerce ... among the several States," U.S. Const. art. I, § 8, cl. 3, to the federal government is a corollary "constraint on the power of the States to enact legislation that interferes with or burdens interstate commerce." Brown v. Hovatter, 561 F.3d 357, 362 (4th Cir. 2009). This doctrine, known as the "dormant" commerce clause, "is driven by concern about economic protectionism" and seeks to prevent state "regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors." Id. at 363 (quoting Dep't of Revenue of Ky. v. Davis, 553 U.S. 328, 337-38, 128 S.Ct. 1801, 170 L.Ed.2d 685 (2008)). * * * The principle against extraterritoriality as it relates to the dormant commerce clause is derived from the notion that "a State may not regulate commerce occurring wholly outside of its borders." Star Sci., Inc. v. Beales, 278 F.3d 339, 355 (4th Cir. 2002) (citing Healy v. Beer Inst., 491 U.S. 324, 335-36, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989); Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 582-83, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986); Edgar v. MITE Corp., 457 U.S. 624, 642-43, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982) (plurality opinion)). The principle "reflect[s] the Constitution's special concern both with the maintenance of a national economic union unfettered by state-imposed limitations on interstate commerce and with the autonomy of the individual States within their respective spheres." Healy, 491 U.S. at 335-36, 109 S.Ct. 2491 (footnote omitted). A state law violates the extraterritoriality principle if it either expressly applies to out-of-state commerce, see Carolina Trucks & Equip., Inc. v. Volvo Trucks of N. Am., Inc., 492 F.3d 484, 491-92 (4th Cir. 2007), or has that "practical effect," regardless of the legislature's intent, Star Sci., 278 F.3d at 355. Association for Accessible Medicines v. Frosh, 887 F. 3d 664 (4th Cir. 2018)