Editor: Please describe your background during your term as Assistant to the Solicitor General at the Department of Justice. Explain your role in the case of United States v. Windsor.
Shah: I spent over five and a half years as an Assistant to the Solicitor General in the Solicitor General’s office, where I had the privilege of learning the craft of Supreme Court advocacy while representing the United States. During that time, I briefed about 25 merits cases before the U.S. Supreme Court and argued 13, while participating in moot courts in most other cases during that time to help prepare my colleagues for their arguments as well. I also wrote about 150 certiorari-stage briefs, including cert petitions, opposition briefs and invitation briefs. Probably the least publicly known, but certainly not least interesting, aspect of my job was the recommendations process: the Solicitor General’s office must authorize appeals by the federal government, including almost any federal agency, from any adverse decision in the lower courts. That gave me an immense appreciation for the important and varied functions played by various components of the Justice Department and other federal agencies, which sometimes required reconciling competing views of the ultimate interest of the United States.
United States v. Windsor, which involved a constitutional challenge to the Defense of Marriage Act (DOMA), was unique in multiple ways. Because DOMA applied to over a thousand federal statutes providing benefits or making distinctions based upon marital status, it implicated the interests of more agencies than any other case that I had worked on during my tenure there. It was also the rare case where the Solicitor General’s office was challenging, rather than defending, a federal law. After several years during which the Justice Department had defended the constitutionality of that statute, the President and Attorney General determined that DOMA was unconstitutional. My role was that of primary author of the government’s certiorari petitions, which helped bring the case to the Court, and then of the government’s merits briefs. It was a real Department-wide team effort, in which I worked closely with then-Principal Deputy Solicitor General Sri Srinivasan and other DOJ lawyers in crafting the briefs and strategy, and with Solicitor General Don Verrilli in preparation for the oral argument. I feel privileged to have been a part of that landmark decision – an important victory for the Solicitor General’s office, for the United States government and for the cause of equality.
Editor: You also submitted a brief on behalf of the United States in the case of Hollingsworth v. Perry. Was the outcome in this case any surprise in the light of the Windsor decision?
Shah: Hollingsworth, a California case out of the Ninth Circuit, teed up the broader question of whether states must let same-sex couples marry. For a lot of us, the fact that the Supreme Court did not reach that broader question was no surprise; indeed, I was more surprised by the initial grant of certiorari in that case. The Supreme Court tends to act incrementally, especially when it comes to significant issues of social change and civil rights. By deciding Windsor first, the Court was able to apply some of those same equal protection principles in a more modest context, while pushing down the road the broader question of a constitutional right to same-sex marriage. Since Windsor and Hollingsworth, lower courts have struck down laws prohibiting same-sex marriage in several states. That issue could well end up in the Supreme Court again very soon.
Editor: How many cases have you brought before the Supreme Court during your time with Akin Gump, including cert briefs?
Shah: In my short time at Akin Gump so far, we have been fairly active in filing Supreme Court amicus and certiorari-stage briefs. In the patent realm, an area of emphasis for the Court this year, we filed a brief in the Octane Fitness case regarding attorney’s fees and in the Limelight case regarding divided infringement. We also have a couple of petitions pending, one on behalf of Raj Rajaratnam and another that we will be filing shortly on behalf of the Ridley School District, in addition to some opposition briefs and briefs supporting certiorari. We’ve been fairly active in the Court, although we haven’t had any arguments this term.
Editor: The Supreme Court would appear to have a very full docket for the remainder of its term. Starting with the intellectual property cases, you are representing CTIA-The Wireless Association in the case of Limelight Networks v. Akamai Technologies. Please tell our readers about the significance of this case.
Shah: When it’s all said and done, this term may be remembered most for its impact on patent law. Limelight, one of five or so different patent cases the Supreme Court heard this year, essentially presents the question of whether a defendant can be held liable for “inducing” patent infringement when the conduct of multiple actors can be aggregated to satisfy all the steps of a single patent claim. The Federal Circuit has long held that a single actor must perform each step of a patent to directly infringe that patent – a holding that the Supreme Court has not chosen to consider (at least yet). So, if there is no direct infringement by any single actor, then can there be inducement liability where an actor performs one step but causes another actor (or actors) to perform the remaining steps of the patent claim? The impact of this case is particularly significant on network-type technologies, which necessarily involve multiple actors. We thus filed an amicus brief on behalf of CTIA-The Wireless Association, which has particular concerns about the threat of such patent infringement suits in their industry, since it would be fairly easy for a plaintiff to allege that a wireless provider has knowledge that other actors (e.g., application providers and end users) are implementing a particular technology.
Editor: Do you expect the decision will come down before term ends in June?
Shah: The expectation is that the Court will have a decision in all the cases it hears in a given term by the end of June. One wrinkle in Limelight might make that more complicated: the respondents argued that the Court should expand the case to address the question of direct liability for divided infringement. If the Court does so, it is conceivable that the Court could push off deciding the case (after further briefing, argument, and consideration) until the next term.
Editor: Another case that has attracted much interest is Octane Fitness v. ICON Health & Fitness. Tell us about the facts in the case and the thrust of your amicus brief.
Shah: Octane Fitness is one of the cases sometimes characterized as about so-called patent trolls – entities that bring frivolous infringement claims on non-practiced patents in order to extract settlements. In this case, the question is: when can a prevailing defendant, who has been wrongly accused of infringing a patent, recover attorney’s fees? The standard under the patent laws is that you can recover fees only in “exceptional” cases. So, how “exceptional” does the case have to be, and how does the court determine whether your case is one warranting a fee award? We filed an amicus brief on behalf of four major companies – Johnson & Johnson, GE, 3M and Procter & Gamble – to provide the perspective of entities that are both patent holders that sue for infringement but also patent-infringement defendants. The purpose of the amicus brief was two-fold. The first was that the standard for awarding fees in a case should be more flexible than the Federal Circuit’s relatively rigid and parsimonious approach for finding a case exceptional enough to justify an award of attorney’s fees. The second was more of a policy-oriented point: rather than using over-inclusive labels like “patent trolls,” courts should focus on the conduct at issue in a particular case, not an ill-defined class of actors. Sometimes a non-practicing entity is a productive and innovative actor, such as a research or educational institution, that simply licenses or sells its patented technology rather than practicing it.
Editor: Another case of interest is ABC, Inc. v. Aereo, which holds vast implications for the broadcast television industry. Please explain Aereo’s position and why it could cause disruption to broadcasters.
Shah: Aereo has developed a technology using antenna farms that allows it to retransmit broadcast television programming to many individual users. Aereo contends that its technology does not violate the copyright laws – specifically, the “public performance” right – because it is essentially using one antenna per user (and hence not engaging in a public performance). The broadcast television companies argue that this is a blatant but futile attempt to circumvent both the spirit and the letter of the copyright laws and that Aereo should not be able to escape paying royalties required for anyone that retransmits broadcast television programming.
The argument in the case is important for several reasons. We are in a time of significant change with respect to television broadcasting and how people view content in the digital age. This case strikes at the core of the broadcasters’ business model, and an adverse ruling could open the door to other technologies, like Aereo, that could make inroads into this market without compensating the television broadcasters. From Aereo’s perspective, this is a “bet the company” case, as they have predicated their business model on avoiding the scope of copyright laws. Interestingly, from the Court’s perspective, the focus at oral argument was not necessarily on the impact on broadcasters or Aereo, but on whether an adverse decision would impede other technologies, such as cloud technology. Although not enamored with Aereo, some justices seemed hesitant about rendering a decision that would inadvertently impede the development of innovative technologies. As such, the Solicitor General’s brief could play a particularly important role in the Court’s decision. The Solicitor General supports the broadcast television companies, stating that Aereo’s technology violates copyright law while urging that a narrow ruling would not impact development of other technologies of concern.
Editor: What do you think is the biggest business case of this Supreme Court term?
Shah: The Halliburton case regarding securities fraud class actions is potentially the most significant business case if the Court goes as far as the petitioner hopes, which would significantly curtail the ability of plaintiffs to continue to bring securities class actions prevalent since the Basic decision a couple decades ago. The Court has been asked to revisit that key precedent, which held that a court can presume that a particular act of fraud has been incorporated into the security’s price on a well-developed market and that a person who purchased at that price has thus relied on the fraud. Until now, that presumption has been applied at the class certification stage in these cases – the pivotal step due to the economics involved – without meaningful opportunity to rebut the presumption.
Based on the Court’s recent trend of limiting class actions, most believe that the Court intends to limit securities fraud class actions in some way. But it is far from clear that the Court will go as far as petitioner requested and outright overrule the Basic precedent. Instead, the Court could accept some version of petitioner’s fallback argument that more modestly limits these actions by giving defendants greater ability to rebut the fraud-on-the-market presumption at the class certification stage.
Editor: Are there any “sleeper” Supreme Court cases that you could point to that might not be on everyone’s radar screen?
Shah: One really interesting case that hasn’t gotten a lot of press is U.S. v. Bond. Carol Bond is the defendant in this criminal case. Apparently, her friend had an affair with her husband, and Ms. Bond retaliated by, among other things, spreading a dangerous chemical powder around her former friend’s mailbox. So, the friend went to the postal inspector, who set up surveillance cameras in and around her home. Through that surveillance, the postal officials were able to determine that Ms. Bond was responsible. At that point, the federal government decided to bring federal criminal charges against Ms. Bond, charging her not for any postal crime but under the Chemical Weapons Convention Implementation Act. Ms. Bond brought a constitutional challenge that applying that federal criminal law here would exceed Congress’s powers. The unique facts of this case thus present a significant constitutional question about the scope of the treaty and commerce clause powers and, in particular, their limitations with respect to traditional matters of state and local concern.
The treaty power issue is one that the Supreme Court has not tackled in almost a century. In Missouri v. Holland, from 1920, the Supreme Court adopted a pretty expansive view of the treaty power that empowered Congress to implement treaties through federal law, even if those laws were otherwise beyond Congress’s other Article I powers. But the Court may be tempted to provide some limitation here, given that this federal criminal law is being applied to conduct far afield from the purpose of the Chemical Weapons treaty (which presumably was not concerned with Ms. Bond’s personal vendetta).
Editor: What is your appraisal of the Court’s decisions in this 2013-2014 term in terms of its strict constructionist views, particularly in view of the recent Michigan affirmative action decision as to college admissions?
Shah: It’s too early in the term to make any sweeping pronouncements about trends or approaches the Court is taking in its decisions. But the Michigan decision, permitting voters in a statewide initiative to ban the use of affirmative action obviously is a significant one. Among the eight justices (Justice Kagan was recused), there were five different opinions: Justice Kennedy, joined by the Chief Justice and Justice Alito, wrote the controlling opinion. The Chief Justice also penned his own concurrence. Justice Scalia, joined by Justice Thomas, wrote separately to voice a more categorical view. Justice Breyer concurred with a more measured view. Justice Sotomayor, joined by Justice Ginsburg, wrote a vigorous dissent. I think the Court’s fractured decision reflects its struggle to reconcile its historic civil-rights-era precedents protecting a racial minority’s ability to participate in the political process, with its more recent decisions and the trend of state voter initiatives limiting the scope of affirmative action programs. The older precedents involve cases in which the political process was being used to harm African Americans in a very patent, direct and insidious way. Just as the issue of affirmative action itself is more complex and nuanced than outlawing segregation, the question of the Michigan initiative’s ban on the use of race in admissions is more complex and nuanced than those earlier cases. But the opinions upholding the initiative, aside from Justice Breyer’s, really put the continued vitality of those earlier precedents in doubt – something not lost on the dissenters.
Published May 23, 2014.
