Timbs v. Indiana: A Shift Toward Reviving the Privileges or Immunities Clause

“We the People”by StevenANichols is licensed under CC BY-NC-SA 2.0

Hunter Poindexter, Associate Member, University of Cincinnati Law Review

I. Introduction

Among other things, the Fourteenth Amendment of the Constitution proclaims, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” For decades, legal scholars have debated the true intention and meaning of the Privileges or Immunities clause.[1] While a number of scholars argue that the clause was established to incorporate the Bill of Rights against the states, others contend that the clause was intended to protect unenumerated fundamental rights, such as those laid about by Justice Washington in Corfield v. Coryell.[2] Regardless of the numerous interpretations asserted by scholars, the Supreme Court definitively ruled on the issue with the infamous Slaughter-House Cases.[3] Writing for the majority, Justice Miller held that the Privileges or Immunities clause only protected rights relating to federal citizenship from infringement, and that other privileges and immunities were “left to the State governments for security and protection . . .”[4] The dissent noted that the majority’s interpretation only protected rights which had already been secured by the Constitution, essentially ridding the Privileges or Immunities clause of all meaning.[5] Since the Slaughter-House Cases, the Court has seldom mentioned or implicated the Privileges or Immunities clause in its opinions. However, on a handful of occasions, the Justices have shown a renewed interest in the provision. Part II of this post discusses the recent background of the Privileges or Immunities clause in the Court’s decisions. Part III focuses on the concurrences of Justices Thomas and Gorsuch in Timbs v. Indiana,[6] and Part IV analyzes whether these concurrences signal a revival of the Privileges or Immunities clause in American jurisprudence.    

II. Background

In Saenz v. Roe,[7] the Court held that the Privileges or Immunities clause protects an individual’s right to travel from one state to another. [8] Interestingly, this interpretation does not conflict with the majority or dissenting opinions of the Slaughter-House Cases, as each opinion acknowledged that the Privileges or Immunities clause protects a citizen’s right to travel.[9] In his dissenting opinion in Saenz, Justice Thomas contended that the majority placed a meaning on the Privileges or Immunities clause that was unintended by the framers.[10] Moreover, Justice Thomas acknowledged that he would “be open to reevaluating” the interpretation of the Privileges or Immunities clause in a future case, but only with a proper evaluation of the framers’ intent.[11] Eleven years later, Justice Thomas’s willingness to look back into the Privileges or Immunities clause rang true with his concurring opinion in McDonald v. City of Chicago.[12]

In McDonald, the Court held that the Due Process clause of the Fourteenth Amendment incorporates the Second Amendment’s right to bear arms against the states.[13] Notably, the plurality in McDonald explicitly declined to overrule the Slaughter-House Cases, and thus refused to use the Privileges or Immunities clause as a vehicle for incorporation.[14] On the other hand, Justice Thomas, concurring in the judgment, argued that the Privileges or Immunities clause was indeed the correct mechanism for incorporating the Second Amendment.[15] Justice Thomas rejected the Court’s interpretation of the Privileges or Immunities clause in the Slaughter-House Cases, and contended that the clause should be interpreted by “what ‘ordinary citizens’ at the time of ratification would have understood the Privileges or Immunities Clause to mean.”[16]

III. Timbs v. Indiana 

Prior to the 2018-2019 term, Justice Thomas appeared to be alone in his Privileges or Immunities jurisprudence. However, in Timbs, Thomas found an ally in Justice Gorsuch. Timbs revolved around the issue of whether the Excessive Fines clause of the Eighth Amendment may be incorporated against the states. The appellant in Timbs was arrested for dealing a controlled substance, and the State of Indiana attempted to seize the appellant’s $42,000 SUV because it was used to transport heroin.[17] In a majority opinion drafted by Justice Ginsburg, the Court held that the Due Process clause of the Fourteenth Amendment incorporates the Excessive Fines clause against the states.[18] In his opinion concurring in the judgment, Justice Thomas again analyzed the issue under the Privileges or Immunities clause, criticizing the majority for its use of the Substantive Due Process doctrine.[19] Under his analysis, Justice Thomas acknowledged that the ratifying public would have understood the Privileges or Immunities clause to protect against excessive fines imposed by the states.[20] While Justice Thomas’s reliance on the Privileges or Immunities clause was not particularly notable given his opinion in McDonald, this time he managed to receive support from a colleague. Writing separately, Justice Gorsuch agreed with the majority opinion in using the Due Process clause to incorporate the Excessive Fines clause.[21] However, Gorsuch also acknowledged that if the case had turned on the issue, “the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause . . .”[22] With this nod of approval, Justice Gorsuch opened the door for a potential revival of the Privileges or Immunities clause. 

IV. Discussion

For nearly 150 years, the Privileges or Immunities clause has played virtually no role in American jurisprudence; rather, the Supreme Court has relied heavily on the Due Process clause to protect fundamental rights.[23] The issue with this reliance, however, is that it has drawn the ire of scholars insistent on an originalist construction of the Constitution. Numerous scholars, most notably Justice Thomas, view the Due Process clause to refer to procedure as opposed to substance. With this originalist interpretation in mind, the Privileges or Immunities clause appears to be an alternative mechanism for the protection of fundamental rights. 

With the addition of Gorsuch to the bench in April 2017, conservatives anticipated a highly-originalist jurisprudence from the Justice.[24] After all, Gorsuch was replacing the Court’s premier advocate for originalism, Antonin Scalia. It should be noted, however, that Justice Scalia never elected to utilize the Privileges or Immunities clause in his decision-making. In fact, in McDonald, Justice Scalia chose to join the majority opinion rather than Justice Thomas’s concurrence, although he expressly acknowledged that he was troubled by the majority’s use of the Due Process clause.[25] Thus, even with an originalist approach to rival that of Scalia, Justice Gorsuch’s acknowledgment of the Privileges or Immunities clause was not necessarily expected. 

For what it’s worth, Timbs holds no real precedential weight. Because the opinions of Justices Thomas and Gorsuch were merely concurrences, the Court has no obligation to follow their interpretations in future cases. However, Timbs does provide an interesting look into the potential future of constitutional law. As of right now, the Court has two Justices who acknowledge a possible revival of the Privileges or Immunities clause. In 2018, the Court added another conservative member in Brett Kavanaugh. While Kavanaugh did not join Justices Thomas or Gorsuch in Timbs, he is nonetheless expected to have a textualist jurisprudence during his tenure on the Court. As such, it is conceivable that Justice Kavanaugh’s approach could develop over time to match that of Justices Thomas and Gorsuch. If one-third of the Court were to use the Privileges or Immunities clause as a vehicle to protect rights, the remainder of the Court would at least have to acknowledge the possibility of breathing new life into the provision. 

Furthermore, Justice Ginsburg and Justice Breyer are anticipated to end their tenure on the Supreme Court within the next decade or so. If conservatives maintain control of the White House during the times of these nominations, the new Justices will almost certainly maintain an originalist jurisprudence. If, at that time, Justices Thomas, Gorsuch, and Kavanaugh are willing to utilize the Privileges or Immunities clause, the new Justices would likely also consider adhering to this methodology.  The Court would then have a majority of its members implicating the Privileges or Immunities clause to protect fundamental rights, therefore creating precedent for the Court. While this revival is far from certain, its potential is nonetheless significant. 

V. Conclusion

The Slaughter-House Cases essentially stripped the Privileges or Immunities clause of all meaning. Within the past ten years, Justice Thomas has asserted that the clause should be implicated in lieu of the Due Process clause to protect fundamental rights; however, until Timbs, Thomas was alone in his analysis. With Justice Gorsuch’s concurrence in Timbs, Justice Thomas has been somewhat vindicated in his methodology. As Justice Kavanaugh’s jurisprudence evolves, and as new Justices are welcomed to the bench, the Court faces the real possibility of a revival of the Privileges or Immunities clause. 


[1]Douglas G. Smith, The Privileges and Immunities Clause of Article IV, Section 2: Precursor of Section 1 of the Fourteenth Amendment, 34 San Diego L. Rev. 809, 812. 

[2]6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (asserting that the privileges or immunities of citizenship would fall under several “general heads,” including governmental protection, enjoying life and liberty, owning property, and pursuing happiness). 

[3]83 U.S. 36 (1873). 

[4]Id. at 78. 

[5]See id. at 96 (Field, J., dissenting). 

[6]139 S. Ct. 682.

[7]526 U.S. 489 (1999). 

[8]Id. at 503-04. 

[9]Id. (citing Slaughter-House Cases, 83 U.S. at 80, 112). 

[10]Id. at 521 (Thomas, J., dissenting). 

[11]Id. at 528. 

[12]561 U.S. 742 (2010). 

[13]Id. at 791.

[14]Id. at 758. 

[15]Id. at 806 (Thomas, J., concurring in part and concurring in judgment). 

[16]Id. at 813, 852.

[17]Timbs, 139 S. Ct.at 686. 

[18]Id. at 687. 

[19]Id. at 691-92. 

[20]Id. at 693.

[21]Id. at 692. 

[22]Id. 

[23]See Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Meyer v. Nebraska, 262 U.S. 390 (1923). 

[24]See Lauren Russell & Nina Totenberg, Trump’s Supreme Court Pick is a Disciple of Scalia’s ‘Originalist’ Crusade, NPR (Feb. 2, 2017, 6:00 AM), https://www.npr.org/2017/02/02/512891485/trumps-supreme-court-pick-is-a-disciple-of-scalias-originalist-crusade [https://perma.cc/9ZY5-DNXR].

[25]McDonald, 561 U.S. at 791 (Scalia, J., concurring).

Which Ohio Commission Should Regulate Gambling Within the State?

“Roulette table gambling”by Best Free Bets is licensed under CC BY 2.0

Theron Anderson, Associate Member, University of Cincinnati Law Review

This is the second article in a two-part analysis on sports betting. Click here to read an in-depth discussion of Murphy v. NCAA.

Introduction

After being granted the discretion to authorize sports betting within its jurisdiction, Ohio has undertaken the burden to exercise that discretion. After one orbit around the Sun, Ohio seemed to be in agreement that sports betting was the rational move for the state. But the decision to delve deeper into the matter developed an impasse that has not ceased to let up. The issue has become whether sports betting legislation could fit within the current statutory framework without amendments and which existing state commission is best fit to regulate the activity. 

First, this article will present a background of the landmark Murphy v. NCAA case which brought Ohio to this point.[1] Second, it will consider whether the current statutory framework of the state prohibits sports betting, therefore requiring an amendment. Next, this article will outline the bills currently on the state legislature’s to-do list, and the hurdles it faces in accomplishing its legislative goals. Finally, this post interprets the sports betting statutes and analyzes the validity of each argument supporting a particular commission.

Background

In the year following the landmark case of Murphy v. NCAA[2], states reacted to capitalize on their new discretionary authority to legalize sports betting, leading to the legalization of sports betting in eight states.[3] In Murphy, the Supreme Court ruled that the prohibitions imposed by the Professional and Amateur Sports Protection Act (“PASPA”), preventing States from authorizing sports gambling within their respective jurisdictions, violated the constitutional law doctrine of anticommandeering.[4] This doctrine protects the states from the encroachment of the Federal Government on their powers. The Court believed that the issue of gambling fell within the province of the states due to the issue of sports gambling being a controversial subject concerning citizens within their jurisdictions.[5] Therefore, Congress should not be able to exercise power regarding that issue.[6]

Legality of Sports Betting in Ohio

Similar to states throughout the country, Ohio identified Murphy as an opportunity to capitalize on potential revenue for the State.[7] The question of whether states can authorize sports betting was answered affirmatively in Murphy, but that presented a subsequent question of whether sports betting is prohibited by the current laws of the state. Those leading the push in the Ohio legislature have proceeded on the assumption that sports betting legislation can operate within the existing laws.[8]

Three arguments can be made as to why sports gambling is not prohibited under the current laws of the state. First, one could argue that sports betting falls within the definition of “casino gaming” found within the 2009 amendment to the Ohio Constitution.[9] One could also argue that sports betting falls within the lottery language as a “game of chance.”[10] Finally, sports betting can be analogized to horse racing.[11] In the early 20th century, horse betting was permitted even though it was not specifically authorized by the Constitution.[12] Legislatures argue that they possess the power to “simply set laws to regulate sports gambling as it wishes, as it did with horse racing.”[13]

With the creation of legislation regarding the legalization of sports betting, the proponents of legalized sports betting should be able to pass it through without statutory hurdles. If the legislature were to meet civil opposition after the legislation’s passing, the Ohio courts should have many avenues at their disposal to rule in favor of the legislation’s validity.[14]

Pending Legislation Halts over Regulators

Currently, two sports betting bills are working their way through the Ohio legislature.[15] These bills were introduced in March and April of this year.[16] One of the bills is House Bill 194 (“HB194”).[17] HB194 is led by Representatives Dave Greenspan and Brigid Kelly.[18] This bill is the “more robust of the two bills.”[19] The purpose of the bill is to “legalize, regulate and tax sports wagering businesses.”[20] The betting would be regulated by the Ohio Lottery Commission (“OLC”) and permitted at “neighborhood veterans and fraternal organization halls licensed by the lottery” as well as casinos.[21]

The other is Senate Bill 111 (“SB111”).[22] This bill is led by Senators John Eklund and Sean O’Brien.[23] Because SB111 assigns the regulation of sports betting to the Ohio Casino Control Commission (“CCC”), sports betting would only be permitted in the casinos and racinos of Ohio.[24]

The two major differences with the bills are the commission tasked with regulating the betting and where the betting will be allowed.

A stalemate has formed in the legislature due to disagreement over which commission is more fit to regulate sports betting within the State. Those in favor of the House’s bill raise the argument that the CCC cannot legally regulate sports betting.[25] Rep. Greenspan went as far as to say that the House proposal with the OLC in charge is “the only legal option.”[26] The argument against the CCC leans on two points. First, opponents of CCC regulation believe that “the CCC would not have the authority to oversee OH sports betting unless it were considered a casino game.”[27] Second, CCC authority is limited to Ohio casinos; therefore, sports betting would be limited to those casinos.[28]

Sen. Eklund, in support of CCC regulation, rebutted by pointing to the Ohio Constitution omittance of a clear prohibition of the CCC from regulating sports gambling.[29] Sen. Eklund also countered that there is no stipulation that the OLC should regulate sports betting either.[30] If one was to label sports betting as a game of skill rather than a game of chance, it would support the argument of Sen. Eklund that sports betting falls outside of the OLC’s purview.[31]

Sen. William Coley, President of the National Council of Legislators for Gaming States, continued the suspicion of CCC’s aptitude to regulate sports betting by questioning its availability of funds.[32] Sen. Coley supported his suspicion by highlighting the constitutional limitations placed on the CCC for raising funds.[33] Sen. Eklund’s response to this scrutiny was less than persuasive. He stated that “he spoke with the leadership of the CCC and they have every confidence that they have the resources to regulate Ohio sports betting.”

It may seem like this drama should be titled “Eklund vs. the World,” but in the early summer, his bill received encouragement from a major player. Governor Mike DeWine publicly expressed his support for the bill crowning the CCC as the regulator over Ohio sports betting.[34] The support of the governor displays a favorable signal to proponents of a general sports bill, but for those in support of an OLC regulator will have some convincing to do in the near future.[35]

Recently, the HB194 has picked up more traction than the Senate bill. Even though the House bill was delayed due to an unrelated budget discussion this past June, the bill has undergone three hearings in the Finance Committee, with the House expecting to resume discussion after its recess which was scheduled to end in early September.[36] Even considering the current stalemate, proponents of the both bills are expecting a passed bill in the summer of 2020.[37]

What Does the Law Say?

The CCC acquires its authority from Article XV, Section 6 of the Ohio Constitution.[38] The CCC “shall license and regulate casino operators . . . and all gaming authorized by section 6(C).”[39] Section 6(C) states “[c]asino gaming shall be authorized at four casino facilities.”[40] Casino gaming is defined as “any type of slot machine or table game wagering . . . authorized in any of the states of Indiana, Michigan, Pennsylvania, and West Virginia.”[41] Casino gaming is defined as games involving skill or chance.[42]

The OLC acquires its authority from Section 6 of the Ohio Constitution as well as Title 37, Section 3770.03 of the Ohio Revised Code.[43] Within Section 6, the legislature is given the discretionary authority to allow “an agency of the state to conduct lotteries . . . and to award prizes by chance to participants.”[44] The OLC is created by the legislature and given the authority to “promulgate rules under which a statewide lottery may be conducted.”[45]

So…Who Should Regulate?

Sports betting does not adequately fit within the purview of the CCC nor the OLC. For the CCC to be granted the expressed authority to regulate, sports betting must be a casino game. Casino games are defined as slot machines or table games. At first blush, one might attempt to place it within the category of table games, but the category is defined as “any game played with cards, dice, or any mechanical, electromechanical, or electronic device or machine.”[46] A creative argument could be made to fit sports games within that, but it is not convincing considering the fact that some sports betting does not require any “mechanical, electromechanical, or electronic device.”[47] Therefore, the CCC would not be the appropriate commission to regulate sports betting. 

OLC becoming the regulator would depend on one question: does sports gambling fall within the category of a lottery? From the language “promulgate rules under which a statewide lottery may be conducted,” lottery is narrower than Rep. Greenspan and his proponents are willing to admit.[48] The provision does not give much latitude allowing the OLC to dabble in other ventures, such as sports gambling, because it focuses on a single statewide lottery.

The elimination of the two commissions would lead to the sound alternative voiced by Matthew Kredell of the Legal Sports Report.[49] He considered “creating a third regulatory body to handle sports betting.”[50] This design would mirror the response of the Ohio legislature to the similar issue of horse race betting in the early 20thcentury.[51] In that situation, the legislature created the Ohio Racing Commission to regulate the bets on horses.[52]

The practicality of this alternative could be lacking due to how much activity the House’s bill is collecting and the potential issues with funds, but it remains a healthy alternative that should be considered if the legislative stalemate refuses to subside. 

Conclusion

Because this issue of who should regulate presents a moderate amount of ambiguity, the split within the legislature is not a surprise. The House bill has received the most attention, while the Senate bill has received support from the gatekeeper of bills, creating a mystery of what the future holds for sports betting in Ohio. The fierce stalemate should turn the government’s attention to a blueprint of the past, making a specialized commission for sports betting the legitimate course of action. 


[1]Murphy v. NCAA, 138 S. Ct. 1461 (2018).

[2]Id.

[3]Rich Exner, Ohio heads towards legalizing sports gambling: Q&A of how, when and issues in play, cleveland.com (May 9, 2019), https://expo.cleveland.com/news/g66l-2019/05/213161ac655032/ohio-heads-toward-legalizing-sports-gambling-qa-of-how-when-and-issues-in-play.html.

[4]Murphy, 138 S. Ct. 1461 at 1468, 1481.

[5]Id.at 1484.

[6]Id.

[7]Exner, supra note 3.

[8]Matthew Kredell, Argument Bubbles Over Who Should Regulate Ohio Sports Betting, Legal Sports Report (July 25, 2019), https://www.legalsportsreport.com/34594/ohio-sports-betting-casino-commission/.

[9]Exner, supra note 3.

[10]Id.

[11]Id. 

[12]Id.

[13]Id.

[14]Id.

[15]The Lines, Ohio Sports Betting, Ohio Sports Betting News and Information, https://www.thelines.com/ohio/.

[16]Id.

[17]Id.

[18]Exner, supra note 3.

[19]The Lines, supra note 15. 

[20]Id.

[21]Exner, supra note 3.

[22]The Lines, supra note 15. 

[23]Exner, supra note 3.

[24]The Lines, supra note 15. 

[25]Matthew Kredell, Opinion On Overseeing Ohio Sports Betting Offers Obstinate Obstacle, Legal Sports Report (July 5, 2019), https://www.legalsportsreport.com/34202/ohio-sports-betting-regulator-opinion/.

[26]Id.

[27]Id.

[28]Id.

[29]Kredell, supra note 7.

[30]Id.

[31]Kredell, supra note 24.

[32]Kredell, supra note 7.

[33]Id.

[34]Id.

[35]Id.

[36]Id.

[37]The Lines, supra note 15.

[38]Ohio Const. art. XV, § 6.

[39]Id. art. XV, § 6(C)(4).

[40]Id. art. XV, § 6(C)(1).

[41]Id. art. XV, § 6(C)(4).

[42]Id. art. XV, § 6(C)(9).

[43]Ohio Const. art. XV, § 6, Ohio Rev. Code Ann. §3770.03 (LexisNexis 2017).

[44]Ohio Const. art. XV, § 6.

[45]Ohio Rev. Code Ann. §3770.03(A) (LexisNexis 2017).

[46]Id. art. XV, § 6(C)(9).

[47]Id.

[48]Ohio Rev. Code Ann. §3770.03(A) (LexisNexis 2017).

[49]Kredell, supra note 24.

[50]Id.

[51]Exner, supra note 3.

[52]Id.

The Expanding Blocking Patent Doctrine: a Reversal of Burden of Proof?

Patents, Pez #1” by etorov is licensed under CC BY-SA 2.0.

Nathan Potter, Blog Editor, University of Cincinnati Law Review

I. Introduction

Overcoming obviousness is becoming increasingly difficult in some industries due to competitors seeking “blocking” patents.[1] A blocking patent is obtained by one patentee to restrict the make, use, sale, and/or export of an earlier patent owned by a different patentee. This may prohibit both patentees’ use of their respective patents due to the likelihood of infringement. Because a blocking patent may dissuade a competitor from pursuing innovation, it can be difficult to apply the objective indicia of nonobviousness (including commercial success, long felt but unsolved needs, and failure of others) listed in Graham v. John Deere Co.[2] This conflict has been brought to the Supreme Court of the United States in Acorda Therapeutics, Inc. v. Roxane Laboratories, Inc.[3] This petition has been distributed for conference on October 1, 2019.[4]

II. Background

A patent must be a nonobvious invention over prior art.[5] 35 U.S.C. § 103 evaluates nonobviousness from the perspective of a person having ordinary skill in the art (a “PHOSITA”). If a PHOSITA would determine that a potentially patentable invention is an obvious variation or addition to prior art, then the invention is not patentable. When determining whether a potentially patentable invention is obvious, the PHOSITA will use the four Graham factors: (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at issue; (3) the level of ordinary skill in the art; and (4) secondary considerations (or the indicia of nonobviousness).[6]

These “secondary” considerations have become increasingly important since Graham. The Federal Circuit has emphasized the importance of secondary considerations in “guard[ing] as a check against hindsight bias.”[7] The Federal Circuit has also used secondary considerations to reverse district courts’ findings of obviousness.[8] The Federal Circuit has even commented on the necessity of analyzing secondary considerations before pronouncing an invention at issue in a case as obvious.[9]

III. Acorda Therapeutic, Inc. v. Roxane Laboratories, Inc., et al.

Acorda centers on four patents that claim the administration of a medication that is used to improve walking in individuals with multiple sclerosis.[10] Acorda was granted an exclusive license for another patent (the Elan patent) from Elan Corporation.[11] The Elan patent discouraged other companies from researching the administration of medication as detailed in the Acorda patents because of the likelihood that those developments would infringe the Elan patent.

One of Acorda’s arguments was “that the district court improperly applied a categorical rule that a blocking patent (the Elan patent) negates any findings in favor of Acorda on the objective indicia of commercial success, failure of others, and long felt but unmet need.”[12] The Federal Circuit sided with the district court, stating the ruling was based on the factual findings of the case, not a categorical ban.[13] The Federal Circuit continued, stating that a blocking patent, by itself, does not discount evidence of commercial success as a secondary consideration, but it requires a more fact-specific inquiry.[14] However, the existence of a blocking patent does lead to the logical conclusion that competitors may be less commercially motivated to pursue similar research.[15] After losing its appeal to the Federal Circuit, Acorda raised its case to the Supreme Court.

A. Petitioner’s Brief

Acorda’s brief asks whether objective indicia of nonobviousness may be partially or entirely discounted by the existence of a blocking patent, and, if so, whether the defendant must prove implicit or actual blockage.[16] The brief alleges that the Federal Circuit’s opinion is in direct conflict with Graham and opens the obviousness inquiry to hindsight bias.[17] The brief also alleges that the Federal Circuit has overridden the Supreme Court’s decision in Microsoft Corp. v. i4i Limited Partnership, which said that patents are presumed valid under 35 U.S.C. § 282(a) and that it is up to the challenger to prove invalidity, based on obviousness, by clear and convincing evidence.[18]

Acorda argues three key points against the concept of blocking patents within the pharmaceutical industry.[19] First, that 35 U.S.C. § 271(e)(1)’s safe harbor provision will protect researchers from being accused of infringement.[20] Second, that the defendants were capable of researching the art in the Elan patent outside the U.S.[21] And third, that the blocking patent could have been licensed to the defendants for a share of the profits.[22] Acorda then concludes, under these points, that any finding of blockage would have to be implicit.[23]

Acorda also argues that the Federal Circuit improperly applied the “clear and convincing evidence” standard.[24] Further, Acorda stated that the defendants did not have to overcome this standard because the Federal Circuit negated Acorda’s evidence of commercial success and other indicia of nonobviousness.[25] Acorda concludes that the blocking patent doctrine improperly shifted the burden of proof to Acorda.[26]

B. Respondents’ Brief

The Respondents’ brief alleges that the district court correctly found Acorda’s patents to be obvious in light of published studies and other evidence.[27] Respondents also point out that the Federal Circuit’s review was to consider whether the district court’s factual findings were clearly erroneous.[28] They stated that the Federal Circuit correctly sided with the district court while also rejecting any categorical rules regarding blocking patents.[29]

The Respondents’ brief argues that Acorda’s accusation of the creation of a categorical rule in the blocking patent doctrine is incorrect and “illusory.”[30] The brief goes on to say that there is no conflict between the outcome in the present case and any decision by the Supreme Court.[31] In this fact-specific inquiry, the Court must consider that the long felt need and commercial success are due to the blocking patent preventing competitors from devoting resources to do research based off the claimed invention.[32] Finally, Respondents surmise that even with the evidence of objective indicia of nonobviousness, Acorda’s patents would be held obvious under the prior art.[33]

IV. Discussion

The Petitioner and the Respondents both presented compelling arguments. There is no evidence of actual blockage. Licensing is common in the pharmaceutical industry. The Respondents never said they sought a license from Elan or Acorda of the Elan patent. Acorda admits that it was given an exclusive license, but there is no mention whether Acorda was permitted to assign that license. But, is it necessary to show actual blockage when the facts of a case strongly lead to an implicit conclusion?

The standard is clear and convincing evidence, not actual proof. The Respondents provided several secondary sources which backed their opinion that a blocking patent severely inhibits the commercial incentive for the Respondents to have pursued invention based on the Elan patent. However, this is still not concrete proof that the Elan patent actually blocked the Respondents’ research in the area.

Secondary considerations, or the indicia of nonobviousness, carry more weight today than they did in 1966, when Graham was decided. This was due to the recognition that those factors are best suited to tipping the scales on whether a patent is invalid due to obviousness. However, when there is significant research in the field and a patent which blocks others’ commercial viability, the court must view any secondary considerations in the light of the facts surrounding a case. To do otherwise, would allow one patentee to dominate a particular area of a field of research. Therefore, the existence of a blocking patent will almost always negate the effectiveness of secondary considerations in an obviousness analysis.

Acorda understates the importance of Federal Circuit’s standard of review. The Federal Circuit could only overturn the district court if it found the ruling to be clearly erroneous. This provided a great deal of deference to the district court, which tried the case based on the facts. Even though the Federal Circuit reviewed those facts, they came to the same conclusion. 

V. Conclusion

Acorda lost its appeal to the Federal Circuit on the facts of the case. It is undeniable that a blocking patent heavily weighs against a court’s consideration of the indicia of nonobviousness. This is the correct approach. Requiring a defendant to show proof of actual blockage is unrealistic in the world of pharmaceuticals. To suggest that a company is welcome to research the claimed invention outside the U.S. is a weak argument. The district court gave the Acorda patents their presumption of validity; however, the respondents overcame this presumption. Acorda relied too heavily on the indicia of nonobviousness to prove their patents were valid, and so those patents were found invalid. The Supreme Court does not need to grant certiorari on this issue because the Federal Circuit has already provided a correct decision. Requiring a defendant to show proof of actual blockage is too heavy a burden and potentially impossible.


[1] 35 U.S.C. § 103. A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.

[2] 383 U.S. 1, 17 (1966).

[3] 903 F.3d 1310 (Fed. Cir. 2018, cert. pending, Apr. 8, 2019).

[4] Acorda Therapeutics, Inc. vs. Roxane Laboratories, Inc., No. 18-1280 (U.S. Apr 08, 2019).

[5] Prior art is any evidence that your invention is already disclosed to the public. Prior art could be disclosed by the inventor or someone else and does not need to be fixed in a tangible medium.

[6] Graham, 383 U.S. at 17.

[7] In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litig., 676 F.3d 1063, 1079 (Fed. Cir. 2012). See also Apple Inc. v. ITC, 725 F.3d 1356, 1365 (Fed. Cir. 2013).

[8] See Transocean Offshore Deepwater Drilling, Inc. v. Maersk Drilling USA, Inc.,699 F.3d 1340 (Fed. Cir. 2012); Plantronics, Inc. v. Aliph, Inc., 724 F. 3d 1343 (Fed. Cir. 2013); Leo Pharm. Prods., Ltd. v. Rea, 726 F.3d 1346 (Fed. Cir. Aug. 12, 2013).

[9] Apple, 725 F.3d at 1365.

[10] Acorda, 903 F.3d at 1313.

[11] Id.

[12] Id. at 1328.

[13] Id. at 1337.

[14] Id. at 1338 (citing Merck Sharp & Dohme Corp. v. Hospira, Inc., 874 F.3d 724 (Fed. Cir. 2017).

[15] Id

[16] Brief for Petitioner at i, Acorda Therapeutics, Inc. vs. Roxane Laboratories, Inc., No. 18-1280 (U.S. Apr. 8, 2019) (https://www.supremecourt.gov/DocketPDF/18/18-1280/95384/20190404120304062_Acorda%20Petition%20TO%20FILE.pdf).

[17] Id. at 2.

[18] Id. at 3.

[19] Id. at 20.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id. at 22.

[25] Id.

[26] Id. at 23.

[27] Brief for Respondents at i, Acorda Therapeutics, Inc. vs. Roxane Laboratories, Inc., No. 18-1280 (U.S. Apr. 8, 2019) (https://www.supremecourt.gov/DocketPDF/18/18-1280/102277/20190607120933242_18-1280%20Brief%20in%20Opposition.pdf).

[28] Id.

[29] Id.

[30] Id. at 1.

[31] Id.

[32] Id. at 14.

[33] Id.at 18.

Impacts of the Fourth Estate v. Wallstreet.com on the Copyright Office

Nathan Potter, Associate Member, University of Cincinnati Law Review

            The Supreme Court of the United States (SCOTUS) has unanimously concluded that a copyright must be registered by the Copyright Office before an infringement action can be brought.[1] This guidance resolves a long-standing split among U.S. Circuit Courts. Some courts considered a copyright as “registered” once the application was filed with the U.S. Copyright Office, while other courts determined that the copyright was not registered until it was approved by said office. SCOTUS relies on the text of 17 U.S.C. § 411(a) as the basis of their decision, writing: “[the statute] states that ‘no civil action for infringement of the copyright in any United States work shall be instituted until . . . registration of the copyright claim has been made in accordance with this title.’”[2] This quoted portion of the statute appears to plainly state that registration must occur before any civil action for infringement upon the copyrighted work. How could circuit courts have misinterpreted such an unambiguous statute? The possibility seems almost silly.

The answer may reside in the omitted portion of SCOTUS’s quote from 17 U.S.C. 411(a). “[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”[3] “Preregistration” is omitted because it does not mean “time prior to registration,” but is its own application with the Copyright Office. It is meant to be a placeholder for applicants who are concerned with pre-release infringement.[4] And no, “preregistration” is not a reason some courts do not require action by the Copyright Office prior to bringing an infringement claim. However, it is an interesting pitfall for those unaware of “preregistration’s” meaning.

Justice Ginsberg’s opinion focuses on reading 17 U.S.C. § 411(a) as a whole, instead of individual pieces having different requirements for the grant of rights.[5] Overall, the opinion heavily emphasizes the way that Congress wrote the statute. 17 U.S.C. § 411(a) focuses on actions taken by the Copyright Office; it does not dictate that the applicant is granting their own right by mere submission of a document to the Copyright Office. This premise is reinforced in 17 U.S.C. § 411(b), which states that the Copyright Office will review the information presented in the application and has the right to refuse registration based upon inaccuracies. The requirement of completed registration by the Copyright Office was previously considered to be the “Registration Approach.” The other ideology was referred to as the “Application Approach.” Even though the Application Approach has been invalidated by SCOTUS, it is still worthwhile to understand the rationales of its followers.[6]

The Application Approach

            Cosmetic Ideas, Inc. v. IAC, et al., which has been overruled due to SCOTUS’s holding in Fourth Estate, provides the rationale behind the Application Approach.[7] In Cosmetic Ideas, the plaintiff asserted that it had fulfilled its obligations under 17 U.S.C. § 411(a) because the plaintiff had submitted a completed application for registration with the Copyright Office.[8] The Ninth Circuit pondered the question of “what it means to ‘register’ a copyrighted work?”[9] And, referring back to the Supreme Court’s decision in Reed Elsevier, Inc. v. Muchnick, the Ninth Circuit stated that the Supreme Court did not intend for a lack of a completed registration to be a subject-matter jurisdiction bar to a federal court.[10] And, the Ninth Circuit assumed that if it has jurisdiction, then the plaintiff must have a valid complaint even with an incomplete registration. The Ninth Circuit also points out that several other circuits, including the Fifth and Seventh Circuits, have adopted this Application Approach.[11] All like-minded circuits state that the application to the Copyright Office is enough to create standing to bring a claim because the Copyright Office will perform the gatekeeping function of removing invalid copyrights.[12]

The Registration Approach

            The Registration Approach resolves the glaring problem of the Application Approach. Specifically, it stops a plaintiff from asserting a claim and then having the plaintiff’s copyrighted work be denied by the Copyright Office. This results in a protection for defendants against frivolous litigation and expenses. It also provides the courts with the confirmation from the Copyright Office’s that the plaintiff holds a valid copyright.[13]

Additionally, as Justice Ginsberg pointed out in Fourth Estate, the text of 17 U.S.C. § 411(a) focuses on the actions of the Copyright Office, not the actions of the applicant.[14] To hold otherwise would mean that Congress used the term “registration” in the context of two different meanings within consecutive sentences: (1) the applicants act of filing an application; and (2) the Copyright Office’s review of an application.[15] Justice Ginsberg also points out that if the Application Approach was the correct approach, then there would be no reason for an applicant who fears prepublication infringement to apply for preregistration.[16] Doing so would be a wasted effort because the applicant could simply apply for registration and commence with the claim of infringement.

Outcomes of Fourth Estate v. Wallstreet.com

Fourth Estate’s holding does not prevent a plaintiff from recovering damages prior to the Copyright Office’s receipt of the plaintiff’s application or the office’s grant of the plaintiff’s copyright. If infringement occurs before a plaintiff’s application to the Copyright Office or before a grant from that office, the plaintiff may still recover damages for the past infringement; he may also recover the infringer’s profits.[17] Section 504 of the Copyright Act relaxes the need for an expedient application and grant of a copyright. This section also means that the Application Approach is about the plaintiff’s judicial expediency and has little bearing on remedies for infringement. However, Congress has recognized that there are some mediums, susceptible to prepublication infringement, which may need to file an infringement claim prior to registration. One example is live broadcasts, which have an exception to the registration requirement of 17 U.S.C. § 411(a).[18] The conclusion may be drawn that the Application Approach lacks practical merit and it only serves to expedite the judicial process for the plaintiff, while potentially resulting in a refused copyright and thousands of dollars of legal work (and the court’s time).

Fourth Estate could cause the floodgates to open at the Copyright Office. In the aftermath of Fourth Estate, it is possible there will be a surge of applicants either seeking to receive a copyright registration for the purpose of infringement proceedings or in preparation of anticipated infringement. No doubt, there will also be creators of copyrightable works who seek legal advice, and that advice will almost always be to file as soon as possible.[19] According to the Copyright Office’s statistics, copyright registration is currently taking an average of sixth months for copyright claims without correspondence through internet filing and hardcopy filing is taking an average of thirteen months without correspondence.[20] Claims which require correspondence between the office and the application take an average fifty percent longer (nine months for internet filing and twenty months for hardcopy filing).[21] The question that needs to be asked isn’t if Fourth Estate will increase the processing time of a copyright application, the proper question is how much this ruling will increase the processing time. Justice Ginsberg even noted that this issue is bound to occur; however, she asserted that delays in the Copyright Office are due to staffing and budgetary shortages and that Congress, not the courts, are the proper avenue of alleviating this burden.[22] This statement is true; however, it is very likely that Congress will be unable to address the surge of copyright applications swiftly enough to prevent a large growth in the processing time required by the office.

Conclusion

The Application Approach has been invalidated by the holding in Fourth Estate. Congress wrote the Copyright Act in such a way that they intended for registration to be granted before a plaintiff may bring a copyright infringement suit. The inclusion of the ability for a plaintiff to recover damages prior to their grant of registration and for the infringer’s profits supports this conclusion. Additionally, Congress has already addressed the issue of copyrighted works, such as live broadcasts, which are highly susceptible to prepublication infringement in 17 U.S.C. § 411(c). It currently takes an average of six to nine months for internet filing and thirteen to twenty months for hardcopy filing; these times will go up in the wake of Fourth Estate. If a client anticipates infringement of an unregistered copyright, it would probably be best for the client to file as soon as practicable.


[1] Fourth Estate Public Benefit Corp. v. Wallstreet.com, LLC, 586 U.S. *12 (Mar. 4, 2019).

[2] Id. at 1 (omissions in the original).

[3] 17 U.S.C. § 411(a) (Emphasis added).

[4] Preregistration, Copyright.gov, https://www.copyright.gov/help/faq/faq-prereg.html (accessed Mar. 14, 2019).

[5] Fourth Estate, No. 586 U.S. *4.

[6] Id.

[7] 606 F.3d 612 (9th Cir. 2010).

[8] Id. at 613.

[9] Id. at 615.

[10] Id.

[11] Id.

[12] See generally Chi. Bd. of Educ. v. Substance, Inc., 354 F.3d 624 (7th Cir. 2003); Apple Barrel Prods. v. Beard, 730 F.2d 384 (5th Cir. 1984).

[13] Fourth Estate, 586 U.S. at 6.

[14] Id. at 5.

[15] Id.

[16] Id. at 7.

[17] 17 U.S.C. § 504(b).

[18] 17 U.S.C. § 411(c).

[19] Genevieve E Charlton & Philip A. Jones, U.S. Supreme Court Rulings Impact Two Critical Copyright Issues: Application not Sufficient to Bring a Claim and Meaning of ‘Full Costs’ to a Prevailing Party, Lexicology, https://www.lexology.com/library/detail.aspx?g=ec9b869e-8b68-42d7-ae10-c9812d7fb246 (Mar. 12, 2019).

[20] Registration Processing Times, U.S. Copyright Office, https://www.copyright.gov/registration/docs/processing-times-faqs.pdf (accessed Mar. 14, 2019).

[21] Id.

[22] Fourth Estate, 586 U.S. at *12.

Fyre Festival Aftermath: New Rules for Influencers?

Matt Higgins, Associate Member, University of Cincinnati Law Review

In early 2019, the infamous story of the Fyre Festival reemerged and gained popularity through two competing documentaries on Netflix and Hulu, “Fyre: The Greatest Party the Never Happened” and “Fyre Fraud,” respectively.[1] Although the documentaries differ, the story told is the same. In 2017, Instagram feeds were bombarded with a mysterious orange tile linking to the Fyre Festival promotional video and ticket packages.[2] The festival was advertised as a first-of-its-kind luxury music festival on a private island in the Bahamas.[3] What followed that initial social media blast was nothing short of a nightmare: bands cancelled last minute, there were not enough beds for guests, almost nothing advertised was seen on site, and general chaos ensued.[4] The chaos of the festival went “viral” and the documentaries subsequently saw success.[5]

The media attention and documentaries also highlighted the issue of unregulated influencer marketing. In short, numerous influencers were able to (1) receive payment from Fyre Media, (2) promote the Fyre Festival on their respective profiles, (3) not disclose their financial relationship with the festival, (4) induce people to buy tickets on false pretenses about the Fyre Festival, and (5) face no consequences for these actions. The nearly $10 billion influencer marketing industry is new, still-developing, and largely unregulated.[6] The Fyre Festival serves as the perfect example for why influencers need to be regulated to ensure advertiser transparency to protect consumers from fraud and deception.[7]

What is an Influencer?

An “influencer” has been described as a person who is famous for being famous. The most common example cited is Kendall Jenner, a member of the Kardashian family made famous through the reality show, “Keeping up with the Kardashians.”[8] Simply stated, a social media influencer is “a user on social media who has established credibility in a specific industry. A social media influencer has access to a large audience and can persuade others by virtue of their authenticity and reach.”[9]

On popular platforms, such as Instagram, influencers revolutionized digital marketing. For that reason, influencers are heavily compensated for their marketing partnerships.[10] For instance, Kendall Jenner was reportedly paid $250,000 for her single post about Fyre Festival.[11] Across Instagram, there are examples of influencers promoting brands to their loyal followers. The issue is that the line between promotion and organic content is often blurred, resulting in many users not being aware they are being advertised to.[12]

The Legal Aftermath Post-Fyre Festival

To the surprise of no one, lawsuits following the failed Fyre Festival piled up quickly.[13] The lawsuits that were most prominent in the headlines were the ones against the organizers of the festival, Ja Rule and Billy McFarland.[14] While the majority of the blame clearly laid with the organizers, the influencers who partnered with Fyre Festival were largely held blameless. In fact, out of nine lawsuits filed after the Fyre Festival, only one made a claim against the influencers.[15]  In the class action complaint, Chinery et. al. v. Fyre Media, Inc., the plaintiffs named 1-100 “Doe Defendants” who “deliberately and fraudulently marketed and sold tickets to a lavish, tropical destination music festival.”[16]

The Chinery complaint stated that the Fyre Festival organizers compensated over 400 influencers including Kendall Jenner, Bella Hadid, Hailey Baldwin, Emily Ratajkowki, Anastasia Ashley, Mike Thomas, Corbin Kelly, and Julia Kelly.[17] The complaint then alleged that the sponsored posts were in “direct violation of the [FTC] Guidelines” because none of the influencers disclosed that they were being compensated to promote the Fyre Festival.[18] Further, it alleged that “without the widespread and uniform dissemination of the false promise described herein, [p]laintiff and class members would not have purchased their Fyre Festival Passes . . . .”[19] The complaint sought damages on numerous claims of action.[20]

The class action was filed in the Superior Court of California on May 2, 2017.[21] On February 16, 2018 the court granted the platintiffs’ request for voluntary dismissal of the entire action without prejudice.[22]  The request for dismissal was filed in conjunction with a declaration by the plaintiffs’ attorney stating that none of the defendants had been served and the plaintiffs intend to refile the action in federal court.[23]

Outside of the class action filing listing Jane Doe influencers, not a single influencer has faced direct consequences for their part in spreading the misrepresentation of the Fyre Festival as a luxury festival in the Bahamas. However, multiple influencers –including Jenner – were recently subpoenaed by the Bankruptcy Trustee in the main Fyre Festival case against the organizers to uncover information regarding Fyre Media’s financial affairs (i.e. where did all the money go?).[24]

How are Influencers Regulated?

The highest authority regulating social media influencers is the Federal Trade Commission (“FTC”). The FTC has enforcement or administrative responsibilities under more than seventy laws. Its primary authority was granted under the Federal Trade Commission Act.[25] The FTC’s endorsement guidelines, through the FTC Act, apply to social media influencers.[26] Therefore, influencers must comply with the guidelines.

If an influencer is being paid by a company to promote its product on social media, it must be disclosed somewhere on the post that the influencer is being paid.[27] Generally, a simple disclosure to indicate to the reader or target audience that the post is sponsored content is effective for compliance.[28] If an influencer and a company have a “material connection,” it needs to be disclosed.[29]

If an influencer does not disclose a material connection, the FTC can take legal action alleging violations of § 5 of the Federal Trade Commission Act.[30] However, the FTC has only gone this far on one occasion.[31] More commonly, the FTC just sends a warning letter to the influencer.[32]

Instead of holding influencers accountable, the FTC has made more of an effort to enforce regulations against the companies that pay them to post their content.[33] For instance, the FTC pursued a claim against Warner Bros. for hiring influencers to promote one of its games without disclosing that they had been paid.[34]

Influencers are also regulated by the terms and guidelines of the social media platform they post on. For instance, Instagram’s parent company has a specific “branded content policy.”[35] Facebook and Instagram also have a “branded content tool” which allows influencers to utilize the “paid partnership with [company]” tags on their posts.[36] The FTC guidelines state that a branded content tool is only effective if it “clearly and conspicuously discloses the relevant connection [to the company].”[37] Failure to comply with the terms and conditions of the social media platform may result in a termination of the influencer’s account.

Remedy 1: The FTC Needs Teeth

The FTC does little or nothing to enforce their influencer guidelines. By merely sending warning letters to influencers reminding them to comply with FTC regulations, the FTC is sending a message that influencers do not really need to disclose when they are being paid by a company to post. To prove this point, one study shows that only a quarter of influencers disclose sponsored content.[38] The FTC’s inaction has actively aided in an unregulated market which is ripe for consumer deception.

To remedy the situation, the FTC needs to actually enforce its influencer guidelines. Sending warning letters should be the first step to eventually filing a § 5 claim against a non-complying influencer. Each violation of § 5 is a monetary fine up to $10,000 and other equitable relief deemed appropriate by a district court.[39] While there may be other legal issues implicated, the FTC should choose high profile influencers not in compliance with its guidelines and file claims under § 5 of the Federal Trade Commission Act against them to send a message to the industry that nondisclosure will no longer be tolerated. The Kardashian family or high-profile fashion bloggers being heavily sanctioned would likely deter other influencers from violating FTC guidelines in the future because of monetary penalties and harm to reputation.

Furthermore, the FTC should hold influencers to the same or a similar standard the Federal Communications Commission (“FCC”) holds broadcasting networks. The FCC holds broadcasters responsible for selecting the broadcast material that airs on their stations, including advertisements.[40] The FCC expects broadcasters to be responsible and ensure advertisements its stations air are not false or misleading.[41] The FTC eventually determines what is false or misleading advertising and allows consumers to file complaints.

Influencers should also be held responsible for selecting content that is posted on their profiles and ensure it is not false or misleading. Placing this responsibility on influencers limits the possibility for a Fyre Festival type advertisement campaign to be spread far and wide on social media timelines.

Finally, Congress should introduce meaningful legislation to increase the regulation of influencer marketing, properly staff the FTC to enforce its guidelines, and bring this issue into public debate.

Remedy 2: Continuing Private Causes of Action Against Influencers

When influencers are partially to blame for disseminating fraudulent content which injures consumers, they should bear some of the blame. Cases such as Chinery should continue to be filed against influencers to force the courts to weigh in on this issue. In Chinery, the plaintiffs alleged that they would not have been inclined to purchase a ticket had they known the influencers were being paid to post the content. This claim could lead to multiple legal outcomes that could change influencer marketing. For instance, a court could hold that an influencer has an affirmative duty to investigate a product or company before posting on their behalf. A different court could hold that not disclosing sponsored content is per se misleading under various state advertising laws. These possibilities are not achievable unless aggressive plaintiffs challenge non-disclosing influencers in court.

Of course, influencers should not be held as responsible for the actual perpetrators of the fraud, such as the organizers of the Fyre Festival. But, they should be held moderately responsible for their role in assisting and disseminating fraud.

Remedy 3: Users Need to Be Vigilant and Skeptical

One positive outcome from Fyre Festival is that some influencers may have lost credibility with their followers. Credibility and trust are the key to effective influencer marketing. The aftermath of the Fyre Festival showed that influencers are more motivated by money than superior products or amazing experiences. Therefore, users on social media sites such as Instagram should be vigilant and skeptical of posts from influencers.

If a user sees a post that is likely an advertisement, but the influencer fails to disclose it, the user should report it to the social media site for being in violation of its terms. Until the FTC decides to pursue action against influencers, the burden is on users and social media companies to pressure influencers to disclose sponsored content. If enough users report noncompliant posts, influencer profiles may be suspended or deleted. Without profiles, influencers will lose their revenue stream. The possibility of this happening would deter influencers from not disclosing sponsored content.

A Fyre that did not Burn

For influencers, the aftermath of Fyre Festival was minimal. The influencers that posted on behalf of Fyre Media faced no consequences from the FTC and social media platforms did not enforce their policies against nondisclosure. The documentaries shed a light on how unregulated influencer marketing is and may have diminished influencers’ trust and credibility with users. However, until the FTC decides to enforce its influencer guidelines, little will change and many influencers will continue to post sponsored content without disclosing that they were paid to post. The consequence of this is continued consumer deception and possibility for fraud.


[1] Sonia Rao, Your guide to Hulu and Netflix’s dueling Fyre Festival documentaries,  Washington Post (2019), https://www.washingtonpost.com/arts-entertainment/2019/01/18/your-guide-hulu-netflixs-dueling-fyre-festival-documentaries/?utm_term=.7b9729e1c33b (last visited Mar 15, 2019).

[2] Rupert Hawksley, Fyre Festival: the Story Behind the World’s Greatest Party that Never Happened, The National (2019), https://www.thenational.ae/arts-culture/television/fyre-festival-the-story-behind-the-world-s-greatest-party-that-never-happened-1.818165 (last visited Mar 15, 2019).

[3] FYRE (Netflix, Jerry Media, Library Films, Vice Studios 2019); FYRE FRAUD (Hulu 2019).

[4] Complaint at 5-8, Chinery et al v. Fyre Media, Inc., (2017), BC659938.

[5] See supra note 3.

[6] Simon Owens, Is It Time to Regulate Social Media Influencers?, Intelligencer (2019), http://nymag.com/intelligencer/2019/01/is-it-time-to-regulate-social-media-influencers.html (last visited Mar 15, 2019).

[7] The influencer industry also has a pervasive fraud issue between influencers and companies. In short, many influencers inflate their reach by purchasing ‘bot’ accounts to increase their follower numbers. This makes it difficult for companies to accurately assess the impact of their investment and is fraudulent. While it is an interesting topic, only the issue of disclosure and advertiser transparency will be covered in this blog.

[8] Keeping Up with the Kardashians, IMDb, https://www.imdb.com/title/tt1086761/fullcredits?ref_=tt_ql_1 (last visited Mar 15, 2019).

[9] Definition: What is a social media influencer?, Pixlee, https://www.pixlee.com/definitions/definition-social-media-influencer (last visited Mar 15, 2019). For the non-internet savvy reader, the following simile may be helpful: an Instagram influencer is like the popular kid in high school. Most people want to be like the popular kid, so they replicate their persona by wearing similar clothing or copying their haircut. Now, imagine the same scenario except the popular kid is being paid by Nike to wear the latest shoe style, TRESemmé to style his or hair, and a popular clothing boutique in town to show off its newest clothing. This is essentially what a social media influencer does. They create a brand off of their own lifestyle and use that popularity to “influence” others to purchase the brands they use or are being compensated to use. Social media users aspire to the live the lifestyle of the influencer, so they replicate it through wearing what they wear, etc.

[10] Shane Barker, How You Can Make a Full-Time Living Just From Instagram, Forbes (2018), https://www.forbes.com/sites/forbescoachescouncil/2018/07/09/how-you-can-make-a-full-time-living-just-from-instagram/#378ee84764bd (last visited Mar 15, 2019).

[11] Rachel Paige, Kendall Jenner’s Fyre Fest Instagram May Have Actually Changed Influencer Culture, Refinery29, https://www.refinery29.com/en-us/2019/01/221813/kendall-jenner-fyre-festival-lawsuit-instagram-ads, (last visited Mar 15, 2019). See also Fyre and Fyre Fraud, supra note 3.  

[12] The Blurred Lines Between Advertising and Social Media, IABC (2016), http://gh.iabc.com/blurred-lines-advertising-social-media/ (last visited Mar 15, 2019). (discussing the context of Canadian regulations).

[13] Instagram ‘Influencers’ Face Peril in Fyre Festival Lawsuit,Fortune, http://fortune.com/2017/05/07/fyre-festival-lawsuit/ (last visited Mar 15, 2019).

[14] Laurel Wamsley, Fyre Festival Hit With $100 Million Suit; Organizer Says ‘We Were A Little Naive” NPR (May 1, 2017 2:58 PM), https://www.npr.org/sections/thetwo-way/2017/05/01/526392280/fyre-festival-hit-with-100-million-suit-organizer-says-we-were-a-little-naïve.

[15] UPDATED: Fyre Festival is Facing 9 Lawsuits, FBI Investigation, Organizer ArrestedThe Fashion Law, The Fashion Law ( Jul. 3, 2017), http://www.thefashionlaw.com/home/a-list-of-all-of-the-fyre-festival-lawsuits-that-have-been-filed-so-far.

[16] Complaint at 2, Chinery et al v. Fyre Media, Inc., (2017), BC659938.

[17] Id. at 5.

[18] Id. at 6.

[19] Id. at 8-9.

[20] Id. at 11.

[21] Complaint at 1, Chinery et al v. Fyre Media, Inc., (2017), BC659938.

[22] Order at 1, Chinery et at v. Fyre Media, Inc., (2018), BC659938.

[23] Plaintiffs’ Request for Voluntary Dismissal of Entire Action Without Prejudice at 2, Chinery et at v. Fyre Media, Inc., (2018), BC659938.

[24] Edward Helmore, Kendall Jenner and Bella Hadid facing possible subpoenas over Fyre Festival, The Guardian (2019), https://www.theguardian.com/culture/2019/jan/29/kendall-jenner-bella-hadid-fyre-festival-subpoena-money (last visited Mar 15, 2019).

[25] 15 U.S.C. §§ 41-58.

[26] The FTC’s Endorsement Guides: What People Are Asking, Federal Trade Commission (Sep. 2019), https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking#SocialNetworkingSites.

[27] Id.

[28] Id.

[29] Lesley Fair, Three FTC Actions of Interest to Influencers, Federal Trade Commission (Sep. 7, 2017 11:11 AM), https://www.ftc.gov/news-events/blogs/business-blog/2017/09/three-ftc-actions-interest-influencers.

[30] In re Csgolotto, Inc., Docket No. C-4632, https://www.ftc.gov/system/files/documents/cases/1623184_c-_csgolotto_complaint.pdf.

[31] CSGO Lotto Owners Settle FTC’s First-Ever Complaint Against Individual Social Media Influencers, Federal Trade Commission (Sep. 7, 2017), https://www.ftc.gov/news-events/press-releases/2017/09/csgo-lotto-owners-settle-ftcs-first-ever-complaint-against.

[32] Fair, supra note 29.

[33] Simon Owens, Is It Time to Regulate Social Media Influencers?, Intelligencer (Jan. 17, 2019), http://nymag.com/intelligencer/2019/01/is-it-time-to-regulate-social-media-influencers.html.

[34] Id.

[35] Branded Content Policies, Facebook, https://www.facebook.com/policies/brandedcontent/ (last visited Mar. 16, 2019).

 Facebook Pages and profiles and Instagram accounts must comply with the following:

1. Don’t include pre, mid, or post-roll ads in videos or audio content.

2. Don’t include banner ads in videos or images.

3. Don’t include title cards within a video’s first three seconds. Interstitial ad cards outside of a video’s first three seconds, such as mid cards or end cards, must not persist for longer than three consecutive seconds and must not be included within Facebook Stories or Instagram Stories.

4. Show Pages must not include branded content in showmarks or trailer videos.

5. Don’t use the branded content tool to tag a Page, brand or business partner without their prior consent.

6. For Facebook Pages and profiles, don’t accept anything of value to post content that you did not create or were not involved in the creation of, or that does not feature you.

7. Comply with all applicable laws and regulations, including by ensuring that you provide all necessary disclosures to people using Facebook or Instagram, such as any disclosures needed to indicate the commercial nature of content posted by you.

[36] Kerry Flynn, Finally, Instagram is getting serious about influencers tagging (Nov. 7, 2017), https://mashable.com/2017/11/07/instagram-sponsored-content-not-disclose-paid-promotion-tag-/#IchUn91QsGqu.

[37] The FTC’s Endorsement Guides: What People Are Asking, Federal Trade Commission (2019), https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking (last visited Mar 15, 2019).

[38] A Year After Major Actions, FTC’s Influencer Marketing Guidelines Still Overlooked, Morning Consult (2018), https://morningconsult.com/2018/10/04/a-year-later-ftcs-influencer-marketing-guidelines-still-largely-ignored/ (last visited Mar 15, 2019).

[39] 15 U.S.C § 45(I).

[40] Complaints About Broadcast Advertising, Federal Communications Commission (2019), https://www.fcc.gov/consumers/guides/complaints-about-broadcast-advertising (last visited Mar 15, 2019).

[41] Id.

Impeachment: The Process

Kevin Cox, Associate Member, University of Cincinnati Law Review

The call for President Trump’s impeachment has been unrelenting since he took office in 2017, and even more so since the Democrats took control of the House of Representatives. Whether that call has merit is not the topic of this discussion.  No, this discussion is about the history and procedures of the impeachment process. 

Before beginning this discussion, it is noteworthy that only two U.S. presidents have been impeached: Andrew Johnson in 1868, and Bill Clinton in 1998.  Richard Nixon, probably the most notable president subjected to the impeachment process, was never impeached.  He resigned shortly before the full House had the opportunity to vote on his impeachment.[1]  Further, both Johnson and Clinton were acquitted by the Senate and never removed from office.[2] More than sixty impeachment proceedings have been raised by the House, but less than a third have led to full impeachments and removal from office.[3]

The impeachment process is not a concept original to the United States.  Indeed, the process has roots dating back to fourteenth-century England, where it was used to hold the king’s advisers accountable.[4]  The framers drafted the Constitution’s impeachment provisions to guarantee that the process would serve as a check on the powers of both the judicial and executive branch.[5]  In old England as well as early American colonial governments, impeachment trials took place in the upper legislative body based on charges brought by the lower house.[6]  Despite this longstanding precedent, the delegates at the Constitutional Convention debated whether the Senate should carry the impeachment power, or whether it should be left to the U.S. Supreme Court.[7]  Alexander Hamilton, in discussing the rationale for granting Congress the impeachment power, referred to the process as a “national inquest” and argued that members of Congress, as representatives of the people, would serve as the best judges during a national inquiry.[8]  To Hamilton, the Supreme Court would be too small and susceptible to corruption, whereas the Senate, a political body representative of the people, would be the best place to preserve impartiality and prevent corruption.[9] 

The Constitution has several provisions regarding the impeachment process. Article I of the U. S. Constitution grants the House of Representatives the sole “Power of Impeachment,” and provides the Senate the sole power to try all impeachments.[10]  Procedurally, there are different voting requirements for each body; a simple majority requirement in the House, and a super-majority requirement in the Senate.[11]  When sitting for the purpose of presidential impeachment, the Senate “shall be on Oath or Affirmation,” and the Chief Justice of the United States shall preside.[12]  “Judgment in Cases of impeachment shall not extend further than to removal from Office, … but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.”[13]

In simple terms, the Constitution states that when a President or other federal officer is suspected of committing an impeachable offense, an individual House representative may introduce a bill to initiate the proceedings, and the House can vote to pass the articles of impeachment on to the Senate.  Since the House initiates the impeachment procedures, it also selects representatives to act as impeachment managers who conduct the cases against the officers or president in the Senate proceeding.[14]  In action, the House acts as a grand jury that votes whether to indict a federal officer or president, and the Senate acts as the judge and jury.

Once the House has passed the articles of impeachment by a simple majority vote, the Senate will then hold a trial.  The Senate Chamber serves as the courtroom, and the Senate becomes the jury and judge, except in cases of presidential impeachment, when the Chief Justice of the U.S. Supreme Court presides over the process.[15]  There will be evidence presented and testimony given, either in favor or in opposition of affirming the impeachment.  If the Senate votes to uphold the impeachment, the president or officer will be removed from office.  

Having explained the impeachment process, it is necessary to discuss the topic of impeachable offenses.  Article II of the Constitution defines impeachable offenses as “Treason, Bribery, or other high crimes and Misdemeanors.”[16]  However, while the offenses of treason and bribery are well established, the exact meaning of “high crimes and misdemeanors” has been long debated.  Since the language is imprecise, susceptible to both narrow and broad interpretations, the meaning has yet to be firmly established.[17] 

Narrow constructionists interpret the language to mean only offenses that are indictable.[18]  Broad constructionist, who view impeachment as a political weapon, interpret the text to include any conduct, even those not based on indictable offenses, that the majority considers impeachable.[19]  Since the House and Senate are political bodies,  elected to represent the people, the meaning of “high crimes and misdemeanors” is bound to evolve as their political makeups changes. Only time will tell.


[1] Impeachment Inquiries into President Richard Nixon,History.House.Gov, https://history.house.gov/HistoricalHighlight/Detail/15032448776?ret=True (last visited Feb. 2, 2019).

[2] List of Individuals Impeached by the House of Representatives, History.House.Gov, https://history.house.gov/Institution/Impeachment/Impeachment-List/ (last visited Feb. 2, 2019).

[3] Impeachment,History.House.Gov, https://history.house.gov/Institution/Origins-Development/Impeachment/ (last visited Feb. 2, 2019).

[4] Impeachment, Senate.Gov,https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm (last visited Feb. 2, 2019).

[5] Jennifer L. Blum, Comment, How Much Process Is Due: The Senate Impeachment Trial Process After Nixon v. United States, 44 Cath. U.L. Rev. 243, 247 (1994). 

[6] Impeachment, supra note 4.

[7] Id.

[8] See Blum, supra note 5; see also The Federalist No. 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[9] The Federalist No. 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[10] U.S. Const. art. I, § 2, cl. 5; id. art. I, § 3, cl. 6.

[11] See id. art. I, § 3, cl. 6 (requiring concurrence of two-thirds present in Senate).

[12] See id.

[13] Id. art. I, § 3, cl. 7.

[14] Impeachment Inquiries into President Richard Nixon, supra note 1.

[15] See Impeachment, supra note 4.

[16] U.S. Const. art. II, § 4.

[17] See Impeachment, supra note 4.

[18] Id.

[19] Id.

In a Rare Moment of Bipartisanship, Industry and Environmental Groups Praise New Modern Fish Act

Photo Credit: Wikipedia https://hu.wikipedia.org/wiki/Atlanti_tarpon

Adam Ares, Associate Member, University of Cincinnati Law Review

            On December 31, 2018 the Modernizing Recreational Fisheries Management Act of 2018, also known as the Modern Fish Act (the Act), was signed into law by President Trump.[1] The Act has been hailed as a bipartisan achievement, bringing together recreational fishers, commercial fishers, and environmental groups.[2] The new legislation will focus on better recreational fisheries management and data collection to help improve the state of the nation’s recreational fisheries.[3] This article will focus on (1) the creation of the Act; (2) provide a summary of the new law; and (3) highlight the reactions across the fishing and environmental communities.

            The main proponents of the Modern Fish Act were the salt-water recreational fishing and boating communities.[4] Historically, recreational and commercial fisheries have been subject to the same regulations and have functionally been treated as the same.[5] However, The National Marine Manufacturers Association stated in a letter to Congress that “[r]ecreational and commercial fishing are fundamentally different endeavors and should be managed differently. Yet, antiquated, one-size-fits-all federal policies are unnecessarily limiting the public’s access to our nation’s abundant natural resources.”[6] They proposed the Modern Fish Act as a way to improve management efforts for recreational fisheries.[7] The Act is intended to reauthorize the Magnuson-Stevens Act, which is a very successful law that has effectively halted overfishing and helped with the replenishment of depleted fish stocks.[8] However, the Magnuson-Stevens Act has not done much to improve the opportunities for recreational fisheries, largely due to a lack of recreational fishery data.[9] The Modern Fish Act is aimed at “provid[ing] fisheries managers with the tools needed to manage recreational fishing in a way that better aligns with what anglers are experiencing on the water, while also bringing angler harvest data into the 21st century.”[10] However, not everyone was initially on board for the Act. The Natural Resources Defense Council called it “a step backwards” in the conservation of the nation’s fisheries.[11]

            Despite the initial disagreements, Congress was able to put together a bill that passed with bipartisan support. The Act includes: allocation for review of South Atlantic and Gulf of Mexico mixed-use fisheries[12]; a study of limited access privilege programs for mixed-use fisheries; and comprehensive data collection amongst all of the Regional Fishery Management Councils to be used for a biannual report on recreational marine fisheries.[13] Essentially, the new Act will allow for new data and management collection to “better meet the requirements of the Magnuson-Stevens Act” and therefore allow for healthier recreational fisheries.[14]

            The response to the passage of the Modern Fish Act has been overwhelmingly positive. The American Sportfishing Association said that the Act “means more and better fishing for your customers – and that’s good news for everybody.”[15] Matt Tinning, Associate Vice President of the Oceans Program for the Environmental Defense Fund, provided in a statement, “We can all be proud to have reached agreement on a bill that responds to the demands of recreational fishing advocates without jeopardizing either sustainability or Americans’ access to local seafood.”[16] It is rare for a piece of legislation to have such universal support from both industry and environmental groups, and it is a testament to the hard work and effort that went into the Modern Fish Act.


[1] Meg Walburn Viviano, Modern Fish Act Signed into Law, Boosting Saltwater Fishing Access, Chesapeake Bay Magazine (Jan. 3, 2019), https://www.chesapeakebaymagazine.com/baybulletin/2019/1/3/federal-modern-fish-act-signed-into-law.

[2] Id.

[3] Id.

[4] The National Marine Manufacturers Association, Boating Coalition Urges Congress to Pass Modern Fish Act, Boating Industry (Nov. 20, 2018), https://boatingindustry.com/news/2018/11/20/boating-coalition-urges-congress-to-pass-modern-fish-act/.

[5] Michael Leonard, Modern Fishing Act Offers Hope, Sport Fishing Magazine (July 23, 2018), https://www.sportfishingmag.com/modern-fish-act-offers-hope.

[6] The National Marine Manufacturers Association, supra, note 4.

[7] Id.

[8] Leonard, supra, note 5.

[9] Id.

[10] Id.

[11] Molly Masterton, Everyone Who Fishes Should be Accountable, Natural Resources Defense Council, (Mar. 7, 2018), https://www.nrdc.org/experts/molly-masterton/accountability-should-be-everyone-who-fishes.

[12] A mixed-use fishery is defined in the Act as “a Federal fishery in which 2 or more of the following occur: (A) Recreational fishing. (B) Charter fishing. (C) Commercial fishing.” Modernizing Recreational Fisheries Management Act of 2018, Sec. 3 (4) (Dec. 31, 2018).

[13] Modernizing Recreational Fisheries Management Act of 2018.

[14] Leonard, supra, note 7.

[15] Modern Fish Act, American Sportfishing Association, https://asafishing.org/advocacy_and_policy/advocacy/modern-fish-act/.

[16] U.S. Senate Advances “Modern Fish Act,” Environmental Defense Fund (Dec. 17, 2018), https://www.edf.org/media/us-senate-advances-modern-fish-act.

Should Plea Bargaining Toll the “Speedy Trial Clock?”

simon blog q picture

John Simon, Associate Member, University of Cincinnati Law Review

Introduction

In 1970, the Supreme Court of the United States upheld the constitutionality of plea bargaining by finding it to be “inherent in the criminal law and its administration.”[1] Plea bargaining constitutes the negotiation between the prosecutor and the accused whereby the parties attempt to finalize an agreement culminating in the accused’s guilty plea in exchange for a lesser charge or sentence.[2] If the plea-bargaining process fails to yield such a result then the case proceeds through the criminal process to trial. Plea bargaining has increased in popularity for several reasons: (1) the unpredictable risks associated with proceeding to trial; (2) the lack of necessary resources to take all cases to trial; and (3) greater case load.[3] In 2017, approximately ninety-seven percent of federal cases ended with a guilty plea prior to trial.[4]

With the increased role of plea bargaining, procedural issues have surfaced in cases involving the parties’ failure to reach a deal. A split has developed among several circuit courts regarding the application of the Speedy Trial Act in the plea-bargaining context. Specifically, the disagreement concerns whether the time spent negotiating a failed plea constitutes a period that tolls the statutorily established speedy trial clock. The Eleventh Circuit maintains that plea bargaining may qualify as an excludable period, but the decision is discretionary, not automatic.[5] Alternatively, the Fourth, Sixth, Seventh, and Eighth Circuits hold that plea bargaining automatically qualifies, under the Speedy Trial Act, as an excludable period.[6] Based upon the legislative intent of the Speedy Trial Act, courts should follow the lead of the Ninth Circuit when applying the Speedy Trial Act to plea bargaining.

History of the Speedy Trial Act

The Constitution enshrines an accused’s speedy trial right in the Sixth Amendment: “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”[7] Historically, the speedy trial right finds its origins in English law.[8] In the Institutes, which translated and explained Magna Carta, Sir Edward Coke wrote:

And therefore, every subject of this realme, for injury done to him in bonis terris, vel persona, by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.[9]

Essentially, no person will be denied justice, and justice includes the right to a speedy trial. The Founding Fathers found inspiration in both Coke’s writing as well as the ideas expressed in the Magna Carta. Several colonies, in their respective constitutions, incorporated the speedy trial right. Thus, unsurprisingly the drafters of the United States Constitution saw the speedy trial as fundamental to the nation.[10]

While the speedy trial right has its constitutional foundation, the Sixth Amendment’s language provides minimal guidance to the legal community. By the time federal legislators introduced the Speedy Trial Act in the late 1960s, all fifty states already maintained speedy trial legislation motivated primarily by a desire to clarify the rights of the accused.[11] In the late 1960s, with national concern growing regarding the rise in crime rates, the motivation for speedy trial legislation took on a new meaning: protecting societal interests by bringing criminals to prompt justice.[12]

In 1967, the ABA’s Advisory Committee on the Criminal Trial, which oversaw the Project on the Minimum Standards of Criminal Justice, developed the Standards Relating to Speedy Trial.[13] In its tentative draft, the Committee recommended the following standards which were included in the Speedy Trial Act of 1974: (1) time limits that start to run from a specified event; (2) the exclusion of periods of necessary delay; (3) a requirement that any continuances be granted upon a showing of good cause; and (4) the sanction of dismissal with prejudice for any violation of an accused’s speedy trial rights.[14]

In 1970, the first draft of the Speedy Trial Act was introduced to the Senate Judiciary Committee’s Subcommittee on Constitutional Rights.[15] The following year, with minimal revisions, the bill was presented to the entire Senate. At that point, the bill incorporated both the broad protections afforded to society through the efficient administration of justice, as well as the constitutional protections given to defendants.[16] In 1974, the bill finally passed the Senate and moved to the House. While the House added amendments, the bill ultimately passed and re-passed the Senate.[17] Responding to the bill’s passage, Senator Sam Ervin, the primary force behind the passage of the bill, stated: “The bill is based upon the premise that the courts, undermanned, starved for funds, and utilizing 18th century management techniques, simply cannot cope with burgeoning caseloads. The consequence is delay and plea bargaining. The solution is to create initiative within the system to utilize modern management techniques and to provide additional resources to the courts where careful planning so indicates.”[18]

The Speedy Trial Act, in its current form, holds that “[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.”[19] The Act further notes that “[a]ny period of delay resulting from other proceedings concerning the defendant” shall be considered excludable from the speedy trial clock’s thirty-day mandate.[20] A non-exhaustive list of eight delays are provided. However, the Act further clarifies that a continuance may be excludable only if the judge “sets forth, in the record of the case, either orally or in writing, [his or her] reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.”[21]

The Eleventh Circuit

The Eleventh Circuit holds that any delays caused by the plea-bargaining process require the court to grant a continuance and make the necessary findings, on the record, that the continuance serves the ends of justice.

In the case of United States v. Mathurin, the Eleventh Circuit aligned its reading of the Speedy Trial Act in the context of plea bargaining with the Second, Fifth, and Ninth Circuits. In that case, Mathurin was taken into federal custody for a string of robberies and taken before a magistrate for an initial appearance in the late spring of 2009.[22] By the summer of that same year, formal plea negotiations had commenced.[23] The parties stipulated that during this period of time, certain events delayed the speedy trial clock—including court orders permitting Mathurin to be prosecuted as an adult and permitting Mathurin to be housed with adult inmates.[24]

According to Mathurin, bilateral negotiations continued until November 2009 when Mathurin told the prosecutor to “go ahead and indict him.”[25] The government, however, contended that negotiations continued until December because Mathurin’s attorney requested that he be given the opportunity to discuss the plea offer with Mathurin.[26] The following spring, Mathurin moved to dismiss all charges pending against him based upon a speedy trial violation.[27] His motion was denied; Mathurin was found guilty of the charges against him.[28]

While Mathurin appealed several issues, the Eleventh Circuit only considered the claim under the Speedy Trial Act. The court noted, first, that § 3161(h)(1)(G) of the Speedy Trial Act automatically excludes only delays resulting from a court’s consideration of a plea agreement presented by the defendant’s attorney and the government’s attorney.[29] In Mathurin’s case, because the parties had only negotiated a plea agreement, but never presented an agreement to the District Court.[30] Plea negotiations may toll the speedy trial clock, though, only if the presiding court makes the necessary findings that “‘the ends of justice served by taking such [a delay] outweigh the best interest of the public and the defendant in a speedy trial.’”[31]

Looking at the Speedy Trial Act’s structure and purpose, it would be improper for the government and defense attorney to toll the speedy trial clock indefinitely for plea negotiations without the approval of the court.[32] Notably, the excludable periods all occur at the direction of the presiding court. Further, the Supreme Court held that the Speedy Trial Act’s purpose is “‘not only to protect defendants, but also to vindicate the public interest in the swift administration of justice.’”[33] Thus, any reading that would consider plea negotiations to be automatically excludable does not comport with the structure and purpose of the Speedy Trial Act.

The Sixth Circuit

The Sixth Circuit held that any delays stemming from plea negotiations are automatically excluded from the speedy trial clock. Plea negotiations, according to these circuits, fall under the “resulting from other proceedings concerning the defendant” exclusion under the Speedy Trial Act.

In 2017, the Sixth Circuit addressed the procedural issue in the case United States v. White. In that case, the Michigan DEA executed a warrant on May 14, 2010 at White’s residence and discovered ecstasy, other drugs, as well as firearms.[34] White was taken into custody but not immediately charged because of his promise to cooperate with the DEA.[35] Finally, in April 2013, the Michigan government officially filed a complaint against White charging him with drug distribution and firearm crimes.[36] In May, the government and White entered into plea negotiations and filed a stipulation with the district court which would exclude a two-week period of time for the plea negotiations.[37] Plea negotiations failed and a grand jury indicted White in June.[38] White’s motion for dismissal based upon speedy trial violations was denied and a jury found him guilty following a three-day trial.[39]

The Sixth Circuit upheld the District Court’s ruling based upon the notion that “plea negotiations are ‘period[s] of delay resulting from other proceedings concerning the defendant’ automatically excludable under § 3161(h)(1).”[40] While the plea-bargaining process does not appear explicitly in the eight enumerated categories of excludable periods, the listed periods constitute examples of excludable periods, and the list is not exhaustive.[41] White’s contention that the magistrate failed to make the necessary findings for an ends-of-justice continuance is invalid because plea bargaining falls into the automatically excludable section of the Speedy Trial Act.[42] Therefore, the stipulated plea bargaining between the government and White did not count toward the speedy trial clock and no speedy trial violation occurred.

White appealed to the United States Supreme Court, which granted certiorari.[43] However, upon learning that the Attorney General made errors in his brief to the Court, the case was remanded to the Sixth Circuit for additional proceedings.[44] The Sixth Circuit has yet to issue a new ruling in the case.

Recommendation

Based upon the legislative intent of the Speedy Trial Act, courts in the future should follow the direction of the Eleventh Circuit when applying the Speedy Trial Act to plea bargaining, which holds that plea bargaining does not automatically toll the speedy trial clock.

First, the legislative history shows that the Speedy Trial Act’s was intended to place time restrictions on the criminal process so that the process could not be drawn out. As Senator Ervin stated: “The bill is based upon the premise that the courts, undermanned, starved for funds, and utilizing 18th century management techniques, simply cannot cope with burgeoning caseloads. The consequence is delay and plea bargaining.”[45] Thus, proponents of the Act intended to provide benefits both to society, by preventing significant delays in the criminal process, as well as the defendant, by reducing the reliance on plea bargaining.

The Senate Judiciary Committee provided further reasoning behind the Act’s specific provisions. Regarding the list of excludable periods, the Committee noted: “This provision, when considered with all the enumerated exclusions from the time limits contained in 3161(h), assures that the time limits do not fall too harshly upon either the defendant or the Government.”[46] Clearly, the intention was to strike a just balance between the prosecutor and defendant so that neither would be unfairly impacted by trial delays. Considering that plea bargaining remains unnamed within the enumerated excludable periods, the Committee addressed its viewpoint on the matter:

If Federal prosecutorial policies are changing in emphasis to reserve for trial more serious offenders, it is obviously not in the public interest to permit those who have engaged in less serious, but nonetheless proscribed, criminal conduct to “take under advisement” a negotiated plea agreement and then move for dismissal once the time to trial has expired. To the same degree public confidence in equal justice would be eroded from the incarceration of an innocent person forced to plead guilty, due to an inability to prepare his or her defense on time. Either would surely constitute a “miscarriage of justice,” and, as the Second Circuit makes plain, no such result was intended. As a general matter the committee is reluctant to automatically exclude plea bargaining per se because the difficulty of measuring the beginning on a bonafide bargaining [sic] but prefers the case-by-case approach of second circuit under existing language.[47]

The Committee adopted the viewpoint of the Second Circuit—the same that has also been adopted by the Eleventh Circuit and others—noting that the Second Circuit’s case-by-case approach prevents miscarriages of justice through improper conduct from either the defendant or the prosecutor.

Rather than force a proceeding into one of the enumerated excludable periods, the Senate Judiciary Committee noted the significance and flexibility of the “ends of justice” provision of the Speedy Trial Act. According to the Committee, analysis showed judicial hostility toward the “ends of justice” provision of the Speedy Trial Act.[48] A study conducted by the Government Administrative Office showed that approximately sixteen percent of incidents of delay were the result of “ends of justice” continuances.[49] The Committee noted: “Neither hostility toward the Act nor fear of the consequences is a justifiable basis for interpretation which is so strict as to deny the spirit of it as well as its letter in application.”[50]

Conclusion

Congress, in 1974, passed the Speedy Trial Act with the intent of clarifying the accused’s constitutional rights and protecting society through prompt justice. While the Act provides guidelines for members of the legal community to follow, gaps exist in the Act. One such gap involves the application of the Act’s provisions to plea bargaining with some circuits maintaining that plea bargaining does not automatically toll the speedy trial clock and others holding the reverse.

To ensure that the intentions for passing the Speedy Trial Act are protected, courts should follow the lead of the Eleventh Circuit which holds that plea bargaining does not automatically toll the speedy trial clock.

[1] Brady v. U.S., 397 U.S. 742, 751 (1970).

[2] Lindsey Devers, Plea and Charge Bargaining, Bureau of Justice Assistance (Jan. 24, 2011), https://www.bja.gov/publications/pleabargainingresearchsummary.pdf

[3] Id.

[4] Dylan Walsh, Why U.S. Criminal Courts Are So Dependent on Plea Bargaining, The Atlantic (May 2, 2017), https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/

[5] The Second and Ninth Circuits share a similar standard. See, e.g. U.S. v. Lucky, 569 F.3d 101 (2d Cir. 2009) (holding that “plea negotiations do not fit comfortably into the ‘other proceedings’ language of section 3161(h)(1)”); U.S. v. Alvarez-Perez, 629 F.3d 1053 (9th Cir. 2010) (holding that, generally, time spent plea negotiating is not automatically excludable).

[6] The Fourth and Seventh Circuits share a similar standard. See e.g., U.S. v. Leftenant, 341 F.3d 338, 345 (4th Cir. 2003) (holding that plea negotiations entered into for other charges constituted “other proceedings” that qualified for automatic exclusion); U.S. v. Montoya, 827 F.2d 143, 150 (7th Cir. 1987) (noting that the plea bargaining process can qualify as “other proceedings” that qualify for automatic exclusion)

[7] U.S. Const. amend. VI

[8] Klopfer v. State of N.C., 386 U.S. 213, 223 (U.S. 1967).

[9] Id. at 224 (citing Coke, The Second Part of the Institutes of the Laws of England 45 (Brooke, 5th ed., 1797)).

[10] Id. at 225.

[11] Anthony Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, Federal Judicial Center (Aug. 1980), https://www.fjc.gov/sites/default/files/2012/LHistSTA.pdf (pg. 11)

[12] Id.

[13] Id.

[14] Id. at 11-12.

[15] Id. at 13.

[16] Id. at 14.

[17] Id. at 15-16.

[18] Id. at 16.

[19] Speedy Trial Act of 1974, 18 U.S. Code § 3161

[20] Id.

[21] Id.

[22] U.S. v. Mathurin, 690 F.3d 1236, 1237-38 (11th Cir. 2012)

[23] Id. at 1238.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at 1238-1239.

[28] Id. at 1239.

[29] Id. at 1241.

[30] Id.

[31] Id. at 1241-1242.

[32] Id. at 1242.

[33] Id. (citing Bloate v. U.S., 559 U.S. 196, 211 (2010)).

[34] U.S. v. White, 679 Fed. Appx. 426, 428 (6th Cir. 2017)(unpublished), cert. granted, judgment vacated, 138 S. Ct. 641 (2018).

[35] Id. at 429.

[36] Id.

[37] Id.

[38] Id.

[39] Id. at 430.

[40] Id. at 431 (citing to United States v. Dunbar, 357 F.3d 582, 593 (6th Cir. 2004)).

[41] Id. (citing United States v. Bowers, 834 F.2d 607, 609–10 (6th Cir. 1987) (per curiam)).

[42] Id.

[43] Supreme Court Avoids Resolving Circuit Split on Speedy Trial Act By Issuing GVR Following Government Confession of Error, fd.org (Jan. 10, 2018), https://www.fd.org/news/supreme-court-avoids-resolving-circuit-split-speedy-trial-act-issuing-gvr-following-government

[44] Id.

[45] Partridge, supra note, 8.

[46] Id. at 104

[47] Id. at 112

[48] Id. at 179.

[49] Id. at 178.

[50] Id. at 179.

Can Drug Rehabilitation Weigh in Sentencing?

Emily Westerfield, Associate Member, University of Cincinnati Law Review

The courts are currently split with regard to their stances on the issue of whether a federal court may consider a criminal defendant’s need to receive rehabilitation for drug addiction when determining the duration of the defendant’s prison sentence during a hearing for the revocation of the defendant’s supervised release. In United States v. Schonewolf, this issue arose when a criminal defendant, a woman who was addicted to heroin, violated the terms of her supervised release when she pled guilty to several drug charges after relapsing.[1] While the sentencing guidelines indicated that the defendant ought to be sentenced to an additional twenty-four to thirty months in prison for the violation of her supervised release, the district court ultimately agreed with the prosecution’s argument, ruling in favor of an upward variance of forty months in prison.[2] The decision to impose an upward variance was based in part on the judge’s reasoning that the defendant’s last hope of recovering from her heroin addiction would be to “limit [her] contact with the outside world for a significant period of time.”[3] The defendant appealed her sentence on the basis that the district court violated the Sentencing Reform Act by imposing an upward variance on the sentencing guidelines as a means of furthering its goal of drug rehabilitation for the defendant.[4] Nonetheless, the Third Circuit upheld the district court’s sentence.[5]

The Sentencing Reform Act requires the courts to consider several factors when determining the duration of a criminal defendant’s prison sentence, accompanied by the recognition that “imprisonment is not an appropriate means of promoting correction and rehabilitation.”[6] In Tapia v. United States, the Supreme Court held that this part of the Sentencing Reform Act effectively prohibits federal courts from determining a criminal defendant’s sentence “in order to promote the defendant’s rehabilitation.”[7] According to the Supreme Court, this interpretation aligns with the Congressional basis for the relevant portion of the Sentencing Reform Act.[8] Courts have no control over whether or not defendants engage in rehabilitative programs once they are in prison, and certainly not over whether those rehabilitative programs are successfully implemented.[9] Moreover, the Third Circuit determined in Schonewolf that the Supreme Court’s holding in Tapia applies to prison sentences determined in revocation hearings.[10] Thus, the defendant’s sentence in that case would still have to abide by the Sentencing Reform Act.

The question, then, is whether a court violates Tapia, and consequently the Sentencing Reform Act, only when the defendant’s need for rehabilitation for drug addiction is the ultimate decision-making factor in the court’s determination of the nature and length of a defendant’s prison sentence, or if a court violates the Act when it gives the defendant’s need for rehabilitation any weight at all in determining the defendant’s sentence.[11] This is precisely where the circuit courts diverge into two separate positions.[12]

The Seventh, Ninth, Tenth, and Eleventh Circuits have previously held that a court violates Tapia and the Sentencing Reform Act when it bases a sentence to any degree on a defendant’s need for rehabilitation.[13] Thus, a court in those circuits could contravene the rule set forth by the Supreme Court in Tapia even if the length of the sentence it imposes on a criminal defendant is not specifically aligned with a particular course of rehabilitation.[14] The Tenth Circuit justifies this approach to Tapia by alluding to the Supreme Court’s statement in Tapia that a prison sentence may not be lengthened so as to ensure a defendant would have the opportunity to complete a rehabilitation program “or otherwise to promote rehabilitation.”[15] According to the Tenth Circuit, the quoted portion encompasses situations in which a court may be influenced by a rehabilitative motivation in imposing a sentence, but does not explicitly base the length of the prison sentence on that purpose.[16]

Meanwhile, the First, Second, Fourth, Sixth, and Eighth Circuits have held that courts may consider a criminal defendant’s need for drug rehabilitation when determining the nature and length of the defendant’s sentence, so long as the defendant’s need for rehabilitation is not the decisive factor in determining the sentence.[17] The Third Circuit joined this position in Schonewolf on the basis that the Supreme Court’s holding in Tapia impliedly preserved the ability of lower federal courts to contemplate a defendant’s opportunity to receive rehabilitative services in prison and the benefits such services may have on the defendant, and consequently on society, when deciding the length of the defendant’s prison sentence.[18] Since the Supreme Court in Tapia merely reversed the district court’s imposition of a prison sentence because the duration of the sentence was based specifically on the idea that it would allow the defendant to complete a particular rehabilitative program while serving the prison sentence, the Third Circuit concluded that the Supreme Court conserved a court’s ability to evaluate the rehabilitative effects, among other factors, of a possible sentence duration when determining whether to impose a sentence of that length.[19]

The Third Circuit definitively sided with the First, Second, Fourth, Sixth, and Eighth Circuits by upholding the district court’s sentence and, thus, utilizing the more lenient standard for a court’s ability to weigh a defendant’s need for rehabilitation when making a sentencing determination.[20] However, the Third Circuit failed to resolve a consequential issue, namely, when the possibility of rehabilitation in prison becomes a determinative, and therefore impermissible, factor in a court’s sentencing determination.


[1] United States v. Schonewolf, 905 F.3d 683, 685 (3rd Cir. 2018).

[2] Id. at 686.

[3] Id.

[4] Id. at 687.

[5] Id. at 692-93.

[6] 18 U.S.C. § 3582(a).

[7] Tapia v. United States, 564 U.S. 319, 327 (2011).

[8] Schonewolf, 905 F.3d at 689-90.

[9] Id.

[10] Id.

[11]  Id. at 690-91.

[12] Id.

[13] Schonewolf, 905 F.3d at 691.

[14] United States v. Thornton, 846 F.3d 1110, 1116 (10th Cir. 2017).

[15] Id. (quoting Tapia, 546 U.S. at 335).

[16] Thornton, 846 F.3d at 1116.

[17] Schonewolf, 905 F.3d at 691.

[18] Id. at 692.

[19] Id.

[20] Id. at 692-93.