Congressional Oversight: Overreach of Authority, or Entrenched Legal Tradition?

“U.S. Capitol Building_15”by US Department of State is licensed under CC BY-NC 2.0

Corey Bushle, Associate Member, University of Cincinnati Law Review

I. Introduction

On May 20, 2019 a D.C. District Court upheld the House of Representatives Oversight Committee’s power to conduct investigations pertinent to its legislative goals, even when those goals intersect with the President’s power.[1] The court held that the Committee had constitutional authority, through Congress’s implied power of inquiry, to request private financial statements of the President, including documents dated years prior to President Trump’s candidacy for president.[2] The decision is far from controversial when viewed in context with the Supreme Court’s jurisprudence on Congressional oversight and inquiry; the Court has not struck down an exercise of the Congressional inquiry power on Constitutional grounds since 1880.[3]

Nevertheless, the decision is important because it illustrates that, while the Supreme Court has paid lip service throughout its history to supposed limitations on Congress’s inquiry and oversight powers, these limitations are ultimately without real substance. This article will review the decision in Trump v. Committee on Oversight and Reform of the U.S. House of Representatives in context of U.S. legal tradition on legislative authority, analyzing whether the decision was correct. Finally, this article will examine whether the decision reflects a policy that will foster effective accountability between the President and Congress.

II. Background

The D.C. District Court’s decision in Trump v. Committee on Oversight and Reform of the U.S. House of Representatives came about from Congress’s massive, ongoing investigation into President Trump, his campaign, and his staff. After the President’s former attorney Michael Cohen testified before Congress alleging that the President routinely altered his financial statements in order to understate or overstate his financial position depending on the situation, the House Oversight Committee launched a series of inquiries into the President’s personal finances.[4] The Committee issued subpoenas to Mazars USA LLP, an accounting firm that provided services to the President, demanding access to several documents concerning the President himself and his affiliated organizations—the earliest of which was dated from 2011, well before Trump was even a presidential candidate.[5] The requests sparked a litigation clash between the President and the Oversight Committee over the extent of the legislative branch’s authority to investigate.

A. The President’s Arguments

The Court sorted President Trump’s arguments for why the subpoenas were unconstitutional into three general categories. First, the President argued that by allegedly investigating into the accuracy of a private citizen’s financial statements, the Committee was not engaged in “legislative” activity, but was usurping the executive and judicial branches by acting as law enforcement. Second, the President argued that since the scope of the inquiry extended beyond Trump’s time as a candidate for office, the Committee’s requests had nothing to do with government oversight, but was merely “exposure for exposure’s sake” of the conduct of a private citizen, which the Supreme Court has held to be an invalid purpose for a Congressional inquiry. Third, the President argued that the Committee did not act with a specific legislative purpose, but that it was conducting “roving oversight” without any end goal in sight, and that the financial documents from Mazars could not be related to any legislative purpose.[6]

B. The Court’s Decision

In granting summary judgement for the House Oversight Committee, the court rejected each of the President’s arguments.[7] As for the first point—that the Committee was usurping executive power by requesting documents that might reveal criminal wrongdoing—the court succinctly held that “[j]ust because a congressional investigation has the potential to reveal law violations does not mean such investigation exceeds the legislative function.”[8] Moreover, the court observed that Congress has wide latitude in its committee activities, and that courts require “exacting proof” to hold that Congress has improperly intruded into the coordinate branches of government.[9] According to the court, Congress would probably need to go as far as indicate that it intended to try the President at bar for criminal wrongdoing by itself, or go on a fishing expedition at the behest of the Department of Justice to secure documents for an investigation, for the Court to conclude that Congress’s true motive in issuing the subpoenas was not legislative, but executive or judicial. Since, in the court’s reasoning, this case clearly did not constitute such an extraordinary case of overstepping of Constitutional authority, the court deferred to the Oversight Committee and concluded that the subpoenas were a valid exercise of legislative power.[10]

After dismissing the first argument, the court turned to the President’s assertion that the Committee was investigating a private citizen’s affairs. Relying heavily on the Supreme Court’s 1880 decision in Kilbourne v. Thompson,[11] where the Supreme Court held that Congress does not have “the general power of investigating the private affairs of a citizen,” the President argued that, since the inquiry focused on activity that preceded his time in office, and the inquiry was not legislative in nature, Congress had no authority to request his private records.[12] Recounting Kilbourne and its unconvincing impact on Congressional inquiries, the court found that the case was largely “impotent” as a guiding principle to limit Congressional power, as no Supreme Court or Circuit Court decision had ever declared a Congressional inquiry unconstitutional because it investigated the private affairs of a citizen. The court characterized the true nature of the Kilbourne holding as one which prohibits Congress from investigating private affairs without a valid legislative purpose.[13] To offend that standard, the court said, a Congressional inquiry must have only one predominant result—an invasion of a person’s private affairs.[14] According to the court, the presence of an underlying invasive motive by individual members of the Committee could not overcome an otherwise valid inquiry connected to a legislative goal.[15]

To that end, the court found that the subpoenas could rationally lead to legislation on ethics and disclosure laws, as well as allowing the Committee to ensure the President’s compliance with the Foreign Emoluments clause—the Oversight Committee’s provided reasons for requesting the subpoenas.[16] Because these subjects were within Congress’s authority to legislate, the inquiry was at least facially valid. Thus, while the President cited several errant remarks by some Committee members that indicated a desire to embarrass or humiliate the President with the subpoenas, the Court declined to speculate as to the “true motive” of the investigation in the face of an otherwise valid legislative purpose.[17]

The President’s final argument contained two prongs. The President argued that the documents were not reasonably relevant to a legitimate legislative purpose, because (1) the request is akin to a “fishing expedition” for which the Committee had no reason to expect it to yield specific information and (2) any contemplated legislation that might be related to the documents would be unconstitutional, and thus the Committee has no valid legislative purpose.[18]

In dismissing the first part of the argument, the court held that the standard for Congressional inquiries, “pertinence” is a much lower bar to meet than the civil litigation standard of “relevance.”[19] Moreover, according to the court, the inquiry at hand would plainly meet either standard as the documents were relevant to the Committee’s investigation into ethics and conflict of interest laws.[20] As to the second portion of the President’s argument, the court held that since the Committee had a facially valid legislative purpose in investigating potential ethics and emoluments violations by the President, as evidenced by the admissions of Trump’s personal attorney, the courts could not overstep their Constitutional authority by ruling contemplated legislation unconstitutional; doing so would amount to issuing an advisory opinion, well outside the authority of federal courts.[21]

Having dispensed with all of the President’s arguments, and finding that the Oversight Committee’s requests were reasonably related to its claimed legislative motives in ethics, conflict of interest, and emoluments laws, the court granted summary judgement to the Oversight Committee.[22]

III. Analysis

The D.C. District Court’s decision in Trump v. Oversight Committee was clearly the correct result, as even the most cursory review of the Supreme Court’s decisions on Congressional investigative authority will show. In an era where public trust in government is at an all-time low,[23] now is not the time for courts to break from tradition to shield elected officials from internal scrutiny for potential wrongdoing, even when the likelihood of revealing such wrongdoing seems low. Moreover, the term “legislative power” is far from a self-defining concept, and courts should avoid rigidly construing this term when doing so has a high likelihood of eroding fundamental, well-established checks and balances between the legislature and the executive.

The Supreme Court has long held that Congress has the implicit power to conduct inquiries and issue subpoenas to ensure that its laws are operating as intended, and to serve an informing function which allows Congress to look into corruption or inefficiencies in government.[24] In the 1927 case McGrain v. Daugherty, the Court considered whether Congress had the power to compel a private citizen to appear before it and testify as necessary to achieve a legislative purpose, and whether it appeared that Congress was actually using the testimony for its offered purpose.[25]At issue in McGrain was alleged misconduct by Attorney General Harry Daugherty, which caused the Senate to authorize a House Committee to investigate Daugherty.[26] In the course of the investigation, the Committee subpoenaed Daugherty’s brother—a banker—to provide testimony and documents from the bank where he worked which were relevant to the charges against the Attorney General.[27] The Court upheld the constitutionality of the subpoenas, observing that the power to obtain information needed to carry out its duties has long been an accepted power of the legislature, predating the United States and stretching back to Colonial Legislatures and British Parliament.[28] The House of Representatives has exercised this power as early as 1792.[29]

The Court in McGrain concluded that even the State courts have near-uniformly held that legislatures possess authority to compel discovery of information to perform their duties.[30] Even before McGrain was decided, legal scholars acknowledged the deeply entrenched nature of the powers of legislative inquiry, punishment for contempt in legislative hearings, and the power to send for persons and papers.[31] In short, there is no reasonable basis to claim that requesting documents and information is not a “legislative power” within Anglo-American legal tradition. 

However, a key issue in both McGrain and Trump is the alleged “private citizen” status of the subpoena’s subject matter. This issue really contains two separate questions: first, does the legal tradition of legislative oversight make a distinction between “public” and “private” persons; and second, is there any compelling policy reason to treat public and private persons differently when it comes to Congress’s power to gather information and conduct oversight?

As for the first question, the answer seems to be a soft “yes.” In Kilbourne, which may be the only case where a Congressional subpoena was held unconstitutional by a federal court, the Court held that Congress had exceeded its authority by investigating an unfavorable settlement with a bank to which the United States was a creditor.[32] The case has often been cited—as President Trump did in Trump v. Oversight Committee—to support the proposition that Congress does not have the general power to investigate the private affairs of a citizen.[33] However, this supposed limitation has proved to be toothless in practice. Since Kilbourne was decided in 1880, no Court of Appeal or Supreme Court case has ever struck down a Congressional subpoena on the grounds that it was an “investigation into the private affairs of a citizen.”[34]

As for the second question, practicality requires that the answer be “no.” The vast majority of conduct regulated by Congress is private; to effectively create laws that punish white collar crime, Congress may need to inquire into private business affairs; if a new technology arises that poses a threat to the safety of its constituents, Congress must be able to summon private scientists and businesspersons familiar with the technology to effectively proscribe regulations. Moreover, the testimony of private individuals may be necessary even when Congress investigates public officials like the President. The case at hand is the perfect illustration of this principle; but-for the time frame of the Mazars documents, which includes documents before Trump’s presidency, there would be no question that in the interest of possible impeachment proceedings, for example, the House could subpoena the President’s records from a private company. However, since the Committee requested some documents from before Trump’s presidency began, the President argued that they were irrelevant to a goal of public oversight. Such an argument has no basis in the law; writing for the Court in Watkins v. United States,Chief Justice Warren observed that citizens are entitled to know the inner workings of their government, and that Congress has the power to aid in that pursuit.[35] Whether the President of the United States has committed crimes, some of which may be ongoing, certainly falls under the umbrella of the inner workings of government to which the public is entitled to know.

IV. Conclusion

Modern legal scholarship on the effectiveness of Congressional oversight is limited, and what little study exists on this subject is inconclusive.[36] If politicians engage in covert dealings with private entities that creates conflicts of interest and a risk of corruption, they cannot be allowed to shield their misconduct behind the private entity through an artificially-imposed barrier. Such a barrier would ensure the evisceration of Congressional Oversight as a potentially effective check on the Executive. Thus, courts must continue to give wide deference to the judgment of Congress when evaluating the Constitutionality of an investigation as an exercise of legislative power.


[1]Trump v. Committee on Oversight and Reform of the U.S. House of Reps., 380 F.Supp. 3d 76 (D.D.C. 2019).

[2]Id.at 82.

[3]Id. at 99.

[4]Id. at 84-85.

[5]Id. at 86.

[6]Id. at 96-97.

[7]See id. at 105.

[8]Id. at 97.

[9]Id.

[10]Id. at 98.

[11]103 U.S. 168 (1880).

[12]Trump, 380 F. Supp. 3d at 99.

[13]Id. at 100.

[14]Id.

[15]Id. at 101.

[16]Id. at 96.

[17]Id. at 101. 

[18]Id. at 101-103.

[19]Id. at 101.

[20]Id.

[21]Id. at 103.

[22]Id. at 105.

[23]Public Trust in Government: 1958-2019, Pew Research Center (Apr. 11, 2019), https://www.people-press.org/2019/04/11/public-trust-in-government-1958-2019/ (last visited Sept. 17, 2019).

[24]See e.g. McGrain v. Daugherty, 273 U.S. 135 (1927); Quinn v. United States, 349 U.S. 155 (1955); Watkins v. United States, 354 U.S. 178 (1957).

[25]273 U.S. at 154-55.

[26]Id. at 151-52.

[27]Id. at 152.

[28]Id. at 161-62.

[29]Id.

[30]  Id.at 165.

[31]James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 169 (1926).

[32]Kilbourne, 103 U.S. at 168.

[33]McGrain, 273 U.S. at 171.

[34]Trump v. Committee on Oversight and Reform of the U.S. House of Reps., 380 F. Supp. 3d 76, 99 (D.D.C. 2019).

[35]Watkins, 354 U.S. at 200.

[36]Carl Levin, Defining Congressional Oversight and Measuring its Effectiveness, 64 Wayne L. Rev. 1, 22 (2018).

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.

From $2 Billion to $87 Million: California Judge a saving Grace for Bayer’s Roundup Legal Trouble

“Courtroom Gavel”by bestlawdir is licensed under CC PDM 1.0

Kyle Greene, Blog Editor, University of Cincinnati Law Review

Bayer’s Roundup weed killer product has been facing an onslaught of legal challenges in the last few years.[1] In particular, two separate juries in California federal court ruled against Bayer just in the past month.[2] In one case, a California couple, Alva and Alberta Pilliod, were set to receive about $55 million in compensatory damages and $2 billion in punitive damages due to a chemical in Roundup weed killer that caused people to contract non-lymphatic cancer from prolonged exposure to the product.[3] In Hardeman v. Monsanto, a separate California jury awarded the cancer-stricken plaintiff with $5 million in compensatory damages and over $75 million in punitive damages.[4] The lawsuits appeared to stem from a 2015 World Health Organization study which stated that a chemical in Roundup “probably caused” cancer in certain patients.[5] Apparently, evidence showed a conscious effort on the part of Bayer to downplay or dismiss the WHO’s findings as non-conclusive. Although the study wasn’t conclusive at the time, July California juries were unmoved by Bayer’s apparent lack of concern for the potentially cancerous chemical of their now famous weed killer.[6]

Although juries may not hesitate when laying massive punitive damages on giant corporate-companies like Bayer, giants like Bayer are not without respite. California judges, fortunately for Bayer, are inclined to follow the well-settled law that punitive damages must not be unconstitutionally egregious compared to compensatory damages.[7] In striking down and changing the punitive damages in both cases – from $2 billion to $87 million for the Pilliod couple and from $75 million to $20 million for Hardeman – the California federal court cited State Farm Mut. Ins. Co. v. Campbell, which set a fairly well-defined test for courts to use in assessing whether excessive punitive damages violate due process.[8]

In State Farm, a jury awarded plaintiff-insureds $2.6 million in compensatory damages and an astounding $145 million in punitive damages on their bad faith claim, citing State Farm’s nationwide fraudulent behavior, their massive wealth, and the need to deter State Farm from engaging in bad behavior in the future.[9] The Supreme Court ruled that such a high punitive award violates the Due Process Clause’s rule against the imposition of “grossly excessive or arbitrary punishments on a tortfeasor.”[10]In light of these concerns, the Court established three guideposts for courts to consider when reviewing punitive damages given by juries: (1) the reprehensibility of the defendant’s conduct; (2) the disparity between the plaintiff’s actual or potential harm suffered and the punitive damages; and (3) the difference between the awarded punitive damages and the imposed penalties in similar cases.[11]

The judges presiding over Hardeman’s and the Pilliod’s cases used these guideposts to rationalize lowering the jury’s high punitive damages against Bayer. In regard to the first guidepost, the Hardeman court noted that although Bayer’s conduct was reprehensible, it was not without mitigating factors.[12] For example, when the people bringing these claims used Roundup, the scientific community was quite unsure of the damages of the chemical in Roundup. However, the court also noted that this does not make them totally innocent, as there was evidence presented that Bayer intentionally downplayed negative findings about their chemical and repeatedly stood by the safety of their product despite findings to the contrary.[13] The second guidepost was perhaps the most illuminating for the California Roundup cases. The Supreme Court has routinely held that a jury’s punitive damage award errs on the side of unconstitutional when it nears a ratio of 9:1 to the compensatory damages.[14] Thus, it easy to see that both the Pilliod’s punitive damages and the Hardeman punitive damages far exceed the nearly bright-line rule that the ratio between compensatory and punitive should generally not reach the double-digits. Hardeman mostly ignored the third guidepost, as the amount of civil penalties Bayer could be subjected to remained unclear, and neither party sufficiently explained how these penalties could be calculated.[15] The court noted that the first two guideposts carry more weight than the third.

Bayer’s next challenge will be in Missouri, where juries are notorious (or praised) for their willingness to side against corporate-defendants. Bayer still has a long war ahead of them in defending the effects of their weed-killing product as they plan to appeal both judgements in California.[16] Judges will likely continue to shield them from some liability given the well-settled law in State Farm, but if Bayer’s appeal proves fruitless, they may want to consider a largescale settlement.[17]


[1]Jonathan Stempel, U.S. judge slashes Roundup jury award to $25.3 million; Bayer still plans to appeal, Reuters, (July 15, 2019), https://www.reuters.com/article/us-bayer-glyphosate-lawsuit/us-judge-slashes-roundup-jury-award-to-253-million-bayer-still-plans-to-appeal-idUSKCN1UA2CH;see also Tina Bellon, Judge Reduces $2 Billion Roundup Jury Verdict to $86 Million, Insurance Journal (July 29, 2019), https://www.insurancejournal.com/news/national/2019/07/29/534109.htm

[2]Id.; see also Hardeman v. Monsanto Co. (In re Roundup Prods. Liab. Litig.), 2019 U.S. Dist. LEXIS 117594, *71. (N.D. Cal. July 15, 2019).

[3]Stempel, supra note 1. 

[4]Hardeman at *4.

[5]Tina Bellon, California jury hits Bayer with $2 billion award in Roundup cancer trial, Reuters (May 13, 2019), (https://www.reuters.com/article/us-bayer-glyphosate-lawsuit/california-jury-hits-bayer-with-2-billion-award-in-roundup-cancer-trial-idUSKCN1SJ29F)

[6]Stempel, supra note 1.  

[7]Hardeman at *4; see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 409-410 (2003).

[8]538 U.S. 408, 409-410 (2003).

[9]Hardeman at *4.

[10] Id. at *415.

[11]Id.; see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996).

[12]Hardeman at *4.

[13]Id.

[14]State Farm. See also Pac. Mun. Life Ins. Co. V. Haslep., 499 U.S. 1, 23-24 (1991).

[15]Hardeman at *4.

[16]Bellon, supra note 1. 

[17]Id.

Justice Kennedy: To Swing or Not to Swing

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review

The recent death of Justice Antonin Scalia has both political parties upset, as both parties want control in appointing the new Justice to replace him. Until Justice Scalia’s seat can be filled, the politically divided Supreme Court risks a 4-4 tie on almost all major contentious cases that are before the Court. In the event of a tie, the Supreme Court traditionally takes one of two approaches. It could result in affirmance by an equally divided Court, Continue reading “Justice Kennedy: To Swing or Not to Swing”

Lack of Consideration Could Lead to Lack of Protection

Author: Brynn Stylinski, Contributing Member, University of Cincinnati Law Review

Discrimination and equal pay have been brought back into the public eye through recent celebrity revelations of huge disparities between the salaries of actors and actresses and the boycott of the Oscars by several stars. These issues have long been a part of our society, however, and courts have attempted to navigate protective legislation such as Title VII in many different ways over the years. Earlier this year, the Seventh Circuit addressed the case of a Mexican-American woman who believed Continue reading “Lack of Consideration Could Lead to Lack of Protection”

Daily Fantasy Sports: Game Of Skill Or Game of Chance?

Author: Gabriel Fletcher, Associate Member, University of Cincinnati Law Review

Draftkings and FanDuel are online daily fantasy sports businesses (DFS).[1] In November of 2015, New York Attorney General (AG), Eric Schneiderman, declared that DFS is gambling, and thus unlawful.[2] The AG’s determination has reignited the discussion over DFS being a game of chance as opposed to a game of skill, which is a determining factor in whether or not DFS constitutes gambling. Continue reading “Daily Fantasy Sports: Game Of Skill Or Game of Chance?”

Ohio Clarifies: Law Enforcement Cannot Conduct Unjustified Search of Vehicle Subsequent to a Recent Occupant’s Arrest   

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

Under the Fourth Amendment, absent an impartial and neutral judge or magistrate, warrantless searches are unconstitutional, subject to only a few exceptions.[1] Leak examined two such exceptions—a search incident to a lawful arrest and inventory searches done pursuant to law enforcement’s community-caretaking function. Continue reading “Ohio Clarifies: Law Enforcement Cannot Conduct Unjustified Search of Vehicle Subsequent to a Recent Occupant’s Arrest   “

 Deflated Again: The Court Got It Wrong in “Deflategate”

Author: Gabriel Fletcher, Associate Member, University of Cincinnati Law Review

Under the Collective Bargaining Agreement (CBA) of 2011, the National Football League (NFL) Commissioner, Roger Goodell, has the power to punish players for conduct detrimental to the integrity of the game of professional football. The NFL accused Tom Brady, the quarterback of the New England Patriots, of being generally aware that his team’s equipment staff engaged in deflating footballs below the NFL’s specified football inflation range. The deflated footballs were said to give Brady and the Patriots a competitive advantage because deflated footballs are “easier to catch, grip, and throw;” particularly in inclement weather.[1] Continue reading ” Deflated Again: The Court Got It Wrong in “Deflategate””

Defining Lawful Activity in a State Employee Lifestyle Anti-Discrimination Statute

Author: Stephanie Scott, Associate Member, University of Cincinnati Law Review

With many states legalizing marijuana for both medical and recreational use, employers have been faced with the difficult question of whether they can fire an employee for legally engaging in marijuana use. Employers generally have the right to fire employees for a good reason, a bad reason, or no reason at all.  However, many states, including Colorado, have passed lawful activity statutes conferring broad protection to its citizens from termination. Colorado also passed a state-constitutional amendment (Amendment) allowing citizens to engage in medical marijuana use, in contradiction with federal law, and its citizens have relied on that protection.[1] Continue reading “Defining Lawful Activity in a State Employee Lifestyle Anti-Discrimination Statute”

The “Blurred Lines” of Copyright Scope

Author: Jon Siderits, Associate Member, University of Cincinnati Law Review

On March 10, 2015, a federal jury found that Robin Thicke and Pharrell Williams infringed a copyright owned by the heirs of Marvin Gaye, by copying substantially from Gaye’s song “Got to Give It Up” when they created their 2013 hit “Blurred Lines.”[1] While other recent copyright disputes involving major recording artists have settled without either party ever filing suit, the battle between the “Blurred Lines” writers and Gaye’s heirs was particularly contentious, all the way up to the uncertain ending.[2] While the heirs have ultimately triumphed (assuming Thicke and Williams do not appeal), a pre-trial decision by the presiding judge to limit the scope of their copyright to a set of written sheet music, rather than the song’s recording, easily could have derailed their case and led to the opposite outcome. Despite the judge’s effort to apply the correct, albeit antiquated, law to the issue, extending the copyright protection to the recording would have been an appropriate, legally supported decision that would have sent a clear message to would-be infringers, and likely would have resulted in an earlier resolution of the case.

Continue reading “The “Blurred Lines” of Copyright Scope”