In Rare Step, Government Moves to Vacate Criminal Convictions of Two Bancroft Clients

On December 15th, 2014, Bancroft attorneys Paul Clement, Erin Murphy and Candice Wong secured a victory for two of their clients in a highly unusual manner:  by convincing the government to abandon their prosecutions.  Dr. Anindya Kumar Sen and his wife, Patricia Posey Sen, were convicted of 29 counts of introducing misbranded drugs into interstate commerce for unwittingly having received prescription drugs that were misbranded by the distributor that sent them.  After Bancroft argued in its opening appellate brief that neither the statute nor the Constitution permits imposition of strict criminal liability for the mere receipt of drug misbranded drugs, the government took the remarkable step of moving to vacate the Sens’ convictions and dismiss the indictment with prejudice.  As the Wall Street Journal reported, this exceeding rare development is likely to have broad ramifications on future prosecutions under 21 U.S.C. 331(a).

Joe Palazzolo, Justice Department Takes Rare Step of Dropping Misbranding Case, The Wall Street Journal (December 16, 2014)

Joint Opening Brief

Bancroft Achieves Unanimous Victory in Integrity Staffing v. Busk

On December 9, 2014, Bancroft secured a unanimous victory before the U.S. Supreme Court in Integrity Staffing Solutions v. Busk, No. 13-433.  The question presented was whether post-shift security screenings are compensable activities under the Fair Labor Standards Act and Portal-to-Portal Act.  The Supreme Court reversed the decision below and held that security screenings are not compensable because they are not an “intrinsic element” of employees’ principal job duties.  This decision will likely result in the dismissal of dozens of class-action suits seeking damages under the FLSA for time spent in security screenings.  Paul D. Clement argued the case for Integrity Staffing and Jeffrey Harris and Barbara Grieco assisted with the briefing.

Supreme Court Opinion

Bancroft Attorneys Steve Potenza and Chris Bartolomucci Help Long Island High School Student Secure Approval of Christian Club

On November 20, 2014, Bancroft attorneys Steve Potenza and Chris Bartolomucci and attorneys from the Liberty Institute helped their client, a sophomore at Wantagh High School in Wantagh, N.Y., secure approval from the Board of Education of the Wantagh Union Free School District for a proposed Christian faith-based club.  After a Wantagh High School official initially asserted that Christian student groups are “illegal” and refused to recognize the proposed Dare to Believe Christian club, Bancroft sent the school district a demand letter challenging the wrongful rejection.  In the letter, Bancroft explained that the Equal Access Act of 1984 provides that once a secondary school such as Wantagh High School allows students to form noncurriculum related clubs that meet on campus, the school must give equal access to, and must not discriminate against, students who wish to form faith-based clubs.  Just days after receiving the letter, the school board approved the club.

Bancroft Demand Letter

Liberty Institute, Dare to Believe Webpage (Nov. 24, 2014)

Fox News Insider, UPDATE: School District Will Allow Student’s Christian Club (Nov. 25, 2014)

Andrew Hackmack, Wantagh OKs Christian club, six others, LI Herald (Nov. 24, 2014)

Bart Jones, Wantagh school district approves sophomore Liz Loverde’s Christian faith-based club, Newsday (Nov. 24, 2014)

Bancroft Partner Erin Murphy Argues Second Amendment Case

On November 17, 2014, Bancroft partner Erin Murphy presented argument before the U.S. Court of Appeals for the Ninth Circuit on behalf of the plaintiffs-appellants in Fyock v. Sunnyvale, No. 14-15408.  The case involves a Second Amendment challenge to a Sunnyvale ordinance that flatly prohibits possession of magazines with a capacity of more than 10 rounds.

Howard Mintz, Sunnyvale Gun Law Up in the Air in Federal Appeals Court, San Jose Mercury News (November 17, 2014)

Maria Dinzeo, 9th Circuit Hears Arguments on Ammo Law, Courthouse News Service (November 17, 2014)

Zac Hudson Argues in the D.C. Circuit as Court-appointed Amicus

On October 14, 2014, Bancroft attorney Zac Hudson argued before the U.S. Court of Appeals for the D.C. Circuit as court-appointed amicus in Clark v. Federal Labor Relations Authority, No. 13-1261.  The case concerns whether the Court has jurisdiction to review an Authority General Counsel’s order unilaterally settling an unfair labor practice charge after a complaint is filed and, if so, whether the settlement in Mr. Clark’s case is valid.

Bancroft Partner Paul Clement To Argue His 75th Case Before the Supreme Court

On October 6, 2014, Tony Mauro in Supreme Court Brief noted that Bancroft partner Paul Clement will argue his 75th case before the Supreme Court of the United States on October 8, 2014. Clement represents the appellant in Integrity Staffing Solutions v. Busk.

Tony Mauro, Docket Chat: Clement’s Milestone and a Jones Day Associate’s Debut, Supreme Court Brief (October 6, 2014)

Bancroft Achieves Unanimous Victory in Krys v. Farnum Place, LLC

On September 27, 2014, the AmLaw Litigation Daily discussed the recent unanimous victory by Bancroft partners Paul D. Clement and George W. Hicks, Jr., in the United States Court of Appeals for the Second Circuit in Krys v. Farnum Place, LLC (In re: Fairfield Sentry Limited), No. 13-3000. The court’s decision vacated and remanded the district court’s affirmation of the bankruptcy court’s decision and ordered the bankruptcy court to hold a hearing under Section 363 of the bankruptcy code over whether the trade of a claim against the estate of Bernard Madoff continued to be financially justifiable.

Jan Wolfe, Fairfield Liquidator Wins New Chance to Void Madoff Deal, The AmLaw Litigation Daily (September 27, 2014)

Bancroft Publishes Supreme Court OT 2014 Term Preview

On September 22, 2014, Bancroft partners Paul Clement, Erin Murphy, Jeffrey Harris, and George Hicks published an overview of the leading cases that will be argued during the Supreme Court’s 2014 Term.  The presentation focuses on cases of interest to the business community, but also addresses high-profile cases regarding voting rights, the separation of powers, and religious freedom.  The Court’s new Term begins on Monday, October 6, 2014.

Supreme Court 2014 Term Preview

Bancroft Partner Paul Clement Argues on Behalf of Ty Warner

On September 17, 2014, oral argument was heard in the U.S. Court of Appeals for the Seventh Circuit over whether a district court abused its discretion by sentencing Ty Warner, the creator of Beanie Babies, to probation and community service, in addition to paying back taxes plus interest and $50 million civil penalty, for a single count of tax evasion in connection with failure to disclose a foreign bank account. Bancroft partner Paul Clement, who argued on behalf of Mr. Warner, asserted that the district court acted well within its discretion in concluding that Mr. Warner’s unique personal history and characteristics made a sentence of probation—the sentence most commonly imposed in offshore account cases—appropriate. Bancroft partner Erin Murphy also serves as counsel in the case.

Jason Keyser, Beanie Babies Creator’s Sentence Debated in Court, Associated Press (September 17, 2014)

Bancroft Partner Viet Dinh Testifies Before U.S. Senate on D.C. Statehood

On September 15, 2014, Bancroft partner Viet Dinh testified before the U.S. Senate Committee on Homeland Security and Governmental Affairs on the constitutionality of S. 132, the New Columbia Admission Act. The act would grant full statehood to the District of Columbia, while preserving a reduced federal district containing the White House, the Capitol, the National Mall, and various monuments and federal government buildings. Dinh testified that the bill is constitutional as it violates neither the New States Clause, the District Clause, nor the Twenty-Third Amendment of the U.S. Constitution and does not require the consent of the State of Maryland. Dinh concluded, in all events, that the courts would likely not rule on the bill’s constitutionality, but would defer to Congress by finding this a political question.

Prepared Statement

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