{ "cells": [ { "cell_type": "code", "execution_count": 2, "id": "490dc40c", "metadata": {}, "outputs": [ { "name": "stdout", "output_type": "stream", "text": [ "Populating the interactive namespace from numpy and matplotlib\n" ] } ], "source": [ "%pylab inline" ] }, { "cell_type": "code", "execution_count": 3, "id": "3cce39dd", "metadata": {}, "outputs": [], "source": [ "import os\n", "os.environ['CUDA_VISIBLE_DEVICES'] = ''" ] }, { "cell_type": "code", "execution_count": 4, "id": "4f92bb44", "metadata": {}, "outputs": [], "source": [ "import re\n", "import pandas as pd\n", "import tqdm\n", "import json\n", "import sox\n", "import requests\n", "\n", "DATA_DIR = \"/mnt/data-ssd-1/data/supreme_court/\"\n", "WAV_DIR = DATA_DIR + \"wavs/\"\n", "TXT_DIR = DATA_DIR + \"txts/\"\n", "JSON_DIR = DATA_DIR + \"gentle_jsons/\"" ] }, { "cell_type": "code", "execution_count": 5, "id": "4255f2bb", "metadata": {}, "outputs": [ { "data": { "text/html": [ "
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" ], "text/plain": [ " uuid audio_path \\\n", "0 10-5400 /mnt/data-ssd-1/data/supreme_court/raw_data/10... \n", "1 10-290 /mnt/data-ssd-1/data/supreme_court/raw_data/10... \n", "\n", " transcript_path duration_s \n", "0 /mnt/data-ssd-1/data/supreme_court/raw_data/10... 3492.310000 \n", "1 /mnt/data-ssd-1/data/supreme_court/raw_data/10... 3530.527007 " ] }, "execution_count": 5, "metadata": {}, "output_type": "execute_result" } ], "source": [ "file_df = pd.read_csv(DATA_DIR + \"raw_file_meta.csv\")\n", "file_df.head(2)" ] }, { "cell_type": "code", "execution_count": 6, "id": "658f93b3", "metadata": {}, "outputs": [], "source": [ "with open(DATA_DIR + \"sections.json\") as f:\n", " section_data = json.load(f)" ] }, { "cell_type": "code", "execution_count": null, "id": "939ce583", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "code", "execution_count": null, "id": "7225067b", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "markdown", "id": "293ca4f6", "metadata": {}, "source": [ "## convert wav files" ] }, { "cell_type": "code", "execution_count": 48, "id": "cde1c7e3", "metadata": {}, "outputs": [ { "name": "stderr", "output_type": "stream", "text": [ "789it [1:06:20, 5.04s/it]\n" ] } ], "source": [ "for _, row in tqdm.tqdm(file_df.iterrows(), total=file_df.shape[0]):\n", " from_fp = row[\"audio_path\"]\n", " to_fp = WAV_DIR + row[\"uuid\"] + \".wav\"\n", " tfm = sox.Transformer()\n", " tfm.convert(samplerate=16000, n_channels=1, bitdepth=16)\n", " tfm.build_file(from_fp, to_fp)" ] }, { "cell_type": "code", "execution_count": null, "id": "51c71e8c", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "code", "execution_count": null, "id": "aa606d04", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "markdown", "id": "e085c080", "metadata": {}, "source": [ "## create txt files" ] }, { "cell_type": "code", "execution_count": 102, "id": "106ae605", "metadata": {}, "outputs": [], "source": [ "REPLACE_DICT = {\n", " \"[laughter]\": chr(500),\n", "}\n", "\n", "def _create_text(sections):\n", " texts = []\n", " index_tupels = []\n", " offs = 0\n", " for _, t in sections:\n", " t_clean = t\n", " for k, v in REPLACE_DICT.items():\n", " t_clean = t_clean.replace(k, v)\n", " texts.append(t_clean)\n", " index_tupels.append((offs, offs + len(t_clean)))\n", " offs += len(t_clean) + 1\n", " text = \" \".join(texts)\n", " return index_tupels, text" ] }, { "cell_type": "code", "execution_count": 103, "id": "077ebb91", "metadata": {}, "outputs": [], "source": [ "diarization_meta = {}\n", "for uuid, sections in section_data.items():\n", " index_tupels, text = _create_text(sections)\n", " with open(TXT_DIR + uuid + \".txt\", \"w\") as f:\n", " f.write(text)\n", " diarization_meta[uuid] = index_tupels" ] }, { "cell_type": "code", "execution_count": 104, "id": "52d7e31d", "metadata": {}, "outputs": [], "source": [ "with open(DATA_DIR + \"diarization_meta.json\", \"w\") as f:\n", " json.dump(diarization_meta, f)" ] }, { "cell_type": "code", "execution_count": null, "id": "3557be81", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "code", "execution_count": null, "id": "4beef32e", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "markdown", "id": "a91fcd56", "metadata": {}, "source": [ "## create alignments" ] }, { "cell_type": "code", "execution_count": 105, "id": "19fdddd1", "metadata": {}, "outputs": [], "source": [ "# get pairs\n", "txt_fps = {fp.split(\"/\")[-1][:-4]: TXT_DIR + fp for fp in os.listdir(TXT_DIR) if fp[-4:] == \".txt\"}\n", "wav_fps = {fp.split(\"/\")[-1][:-4]: WAV_DIR + fp for fp in os.listdir(WAV_DIR) if fp[-4:] == \".wav\"}\n", "pairs = []\n", "for uuid in set(list(txt_fps.keys())) & set(list(wav_fps.keys())):\n", " out_fp = JSON_DIR + uuid + \".json\"\n", " pairs.append((uuid, txt_fps[uuid], wav_fps[uuid], out_fp))" ] }, { "cell_type": "code", "execution_count": null, "id": "37ccf381", "metadata": {}, "outputs": [], "source": [ "SERVER_URL = \"http://localhost:49153/transcriptions?async=false\"\n", "\n", "USE_CONSERVATIVE = True\n", "IMPUTE_DISFLUENCIES = True # 'uh', 'um'\n", "\n", "data = {\n", " \"conservative\": True if USE_CONSERVATIVE else None,\n", " \"disfluency\": True if IMPUTE_DISFLUENCIES else None,\n", "}\n", "\n", "align_fracs = []\n", "for uuid, txt_fp, wav_fp, out_fp in tqdm.tqdm(pairs):\n", " if os.path.exists(out_fp):\n", " continue\n", " files = {\n", " \"audio\": open(wav_fp, \"rb\"), \n", " \"transcript\": open(txt_fp, \"rb\"),\n", " }\n", " r = requests.post(SERVER_URL, data=data, files=files)\n", " align_dict = json.loads(r.text)\n", " with open(out_fp, \"w\") as f:\n", " json.dump(align_dict, f)\n", " align_frac = mean([w[\"case\"] == 'success' for w in align_dict[\"words\"]])\n", " align_fracs.append(align_frac)" ] }, { "cell_type": "code", "execution_count": null, "id": "da5ac38f", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "code", "execution_count": null, "id": "cbed89db", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "code", "execution_count": null, "id": "bc02d495", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "markdown", "id": "07685c94", "metadata": {}, "source": [ "## Playground" ] }, { "cell_type": "code", "execution_count": 9, "id": "04a0109e", "metadata": {}, "outputs": [], "source": [ "from pydub import AudioSegment\n", "from IPython.display import display\n", "\n", "SAMPLE_RATE = 16_000\n", "BYTE_WIDTH = 2\n", "\n", "def play_bytes(b, from_s=None, to_s=None):\n", " if to_s is not None:\n", " b = b[:round(int(to_s * BYTE_WIDTH * SAMPLE_RATE))]\n", " if from_s is not None:\n", " b = b[round(int(from_s * BYTE_WIDTH * SAMPLE_RATE)):]\n", " display(AudioSegment(\n", " b,\n", " frame_rate=SAMPLE_RATE,\n", " sample_width=BYTE_WIDTH,\n", " channels=1\n", " ))" ] }, { "cell_type": "code", "execution_count": 52, "id": "9576e7bd", "metadata": {}, "outputs": [ { "data": { "text/html": [ "
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" ], "text/plain": [ " alignedWord case end endOffset start startOffset word\n", "0 good success 1.76 4 1.59 0 good\n", "1 morning success 2.20 12 1.76 5 morning\n", "2 um success 2.68 15 2.25 13 um\n", "3 i success 3.10 17 2.71 16 i\n", "4 just success 3.37 22 3.12 18 just\n", "5 wanted success 3.57 29 3.37 23 wanted\n", "6 to success 3.72 32 3.59 30 to\n", "7 say success 4.11 36 3.72 33 say\n", "8 hello success 5.87 42 5.39 37 hello" ] }, "execution_count": 52, "metadata": {}, "output_type": "execute_result" } ], "source": [ "SERVER_URL = \"http://localhost:49153/transcriptions?async=false\"\n", "\n", "USE_CONSERVATIVE = True\n", "IMPUTE_DISFLUENCIES = True # 'uh', 'um'\n", "\n", "data = {\n", " \"conservative\": True if USE_CONSERVATIVE else None,\n", " \"disfluency\": True if IMPUTE_DISFLUENCIES else None,\n", "}\n", "\n", "files = {\n", " \"audio\": open(\"tmp/hello.wav\", \"rb\"), \n", " \"transcript\": open(\"tmp/hello.txt\", \"rb\"),\n", "}\n", "r = requests.post(SERVER_URL, data=data, files=files)\n", "align_dict = json.loads(r.text)[\"words\"]\n", "for e in align_dict:\n", " del e[\"phones\"]\n", "df = pd.DataFrame(align_dict)\n", "df" ] }, { "cell_type": "code", "execution_count": null, "id": "44fdcc0a", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "code", "execution_count": 7, "id": "c9e55434", "metadata": {}, "outputs": [ { "name": "stdout", "output_type": "stream", "text": [ "CHIEF JUSTICE ROBERTS\n", " We'll hear argument next in Case 15-7, Universal Health Services v. The United States and Massachusetts ex rel. Escobar and Correa. Mr. Englert.\n", "\n", "MR. ENGLERT\n", " Thank you, Mr. Chief Justice, and may it please the Court: This entire case turns on four words of the statute: \"False or fraudulent claim.\" \"False\" and \"fraudulent\" have been unchanged since 1863 in this statute. \"Claim\" is defined by statute. I'll come back to those words. Three separate State agencies investigated the facts of this case in detail. All three agencies produced lengthy reports and proposed remedial measures for certain alleged regulatory violations. No agency asked for any money back. No sanction at all was imposed on the company. One individual was fined $1,000 and the claimant director was given two years of supervision. Through the magic of the implied-certification theory under the False Claims Act, the very same facts have now been recharacterized as fraud on the government. The First Circuit focused on a single alleged regulatory violation involving a regulation not cited in the complaint, not cited in any appellate brief, not cited in the amicus brief of the Commonwealth of Massachusetts. That is not what \"fraud\" means. Now, coming back to the four words that matter, \"false or fraudulent claim.\" \"False\" means false. This Court construed that word in Williams v. United States. Footnote 3 of Respondents' brief unsuccessfully tries to distinguish Williams. The Solicitor General ignores Williams.\n", "\n", "JUSTICE GINSBURG\n", " It can't mean misleading, then? So \"false\" can only mean false? It can't mean deceptive, misleading?\n", "\n", "MR. ENGLERT\n", " It cannot, Justice Ginsburg. Because the body of law that covers deceptive and misleading statements is not falsity. It's the law of fraud. And the law of fraud is stated in Section 551 of the Restatement of Torts.\n", "\n", "JUSTICE BREYER\n", " Suppose you have a private contract. In the private contract, it's for medical services. The written part does not actually use the word \"doctor,\" but the circumstances are such that any reasonable person would assume, would believe that the parties contracted for medical services provided by a doctor. This is an ordinary contract case. Could not a jury or the judge find that that implicit term of the contract that the services would be provided by a doctor was breached, it was a material breach, and, therefore, the implicit statement was false?\n", "\n", "MR. ENGLERT\n", " Two responses, if I may, Justice Breyer. First, the whole problem here is the tortification of contract. Yes, that's a good contract case, but it's not automatically a good tort case. The second answer --\n", "\n", "JUSTICE BREYER\n", " No, no. What's the second?\n", "\n", "MR. ENGLERT\n", " Section 551(2)(e) of the Restatement deals with that exact situation, facts basic to the transaction. So the common law has developed a meaning of fraud that will accommodate the cases in which liability makes sense because every reasonable person, as Your Honor said, would assume something to be true. Comments j and k and Illustrations 3, 4, 5 and 6 of the Restatement -- rather, 3, 4, 5, 6, 7 and 8, give one example of facts basic to the transaction and five examples of facts not basic to the transaction. It is a very, very, very narrow duty of disclosure.\n", "\n", "JUSTICE BREYER\n", " Well, fine. But now let's go a step further. We have our contract. The facts are such that any reasonable person would assume there is an implicit statement that the services will be provided by a doctor. You say that could be a breach of contract. Now it turns out that this company that has that contract has sold the shares over the SEC. And the SEC says, you know, it's so obvious that that implicit statement in the contract meant that they had a doctor who was a doctor -- that's so obvious -- that we think in selling shares in this company, where indeed this contract was absolutely critical, millions of dollars was at stake, without a doctor, violating of implicit statement that there was a doctor, we think that's fraud under Rule 10(b)(5).\n", "\n", "MR. ENGLERT\n", " I'm glad Your Honor brought that up.\n", "\n", "JUSTICE BREYER\n", " All right.\n", "\n", "MR. ENGLERT\n", " The SEC has a habit of construing fraud under 10(b)(5), and this Court has a habit of reining the SEC in. And the Chiarella case is quite key here. And Chiarella is not cited in Respondents' brief. It's not cited in the government's brief. In all the dark green amicus briefs, it's cited once, and the citation is to the dissent. Chiarella says fraud in a statute is very broad, but it's broad enough to cover the common law and no more. If Congress wants to go broader than the common law --\n", "\n", "JUSTICE BREYER\n", " Well, fine. But what is -- I'm talking the common law. All I know about contracts came from Blackjack Dawson, my contracts teacher -- [laughter] -- who was a great teacher, and he taught the common law. So I don't know anything else. I -- well, I won't go quite that far, but nonetheless. Nonetheless, I think under common law, you could say that that was a material breach of contract, what I just talked to. And indeed, there happened to be a whole set of regulations on the shelf, et cetera, which spell it all out to which there was an implicit reference in the contract if it's -- you understand what I'm saying. It's common law that I'm saying.\n", "\n", "MR. ENGLERT\n", " Well, the thousands of pages of regulations and the implicit reference in the contract are not what the common law means by fraud. They are, sadly, what the lower courts have meant by fraud under the False Claims Act.\n", "\n", "JUSTICE KAGAN\n", " Mr. Englert, I guess I don't understand that. I mean, let me take Justice Breyer's hypothetical and make it even simpler. Let's say that there's a contract and there is an explicit term, and it says I commit to providing a doctor's care. Yes? And then it turns out that the medical care that was provided was not by a doctor. It was by a nurse or it was by somebody with not even that set of qualifications. And -- and then the person who enters into the contract makes a statement, demands payment, and says the care was provided. Now, some care was provided; it is true. But medical care, a doctor's care was not provided. Now, by withholding that fact and by just saying the care was provided, have I not committed fraud under the common law?\n", "\n", "MR. ENGLERT\n", " No, Your Honor. Justice Kagan, that is not fraud. And that situation is actually dealt with by Restatement Section 551(2)(b) and by the famous Junius decision written by Justice Cardozo for the New York Court of Appeals.\n", "\n", "JUSTICE KENNEDY\n", " What -- what about Restatements -- oh, I think it's 529, which -- which says a statement is fraudulent if the maker knows or believes that it's misleading because of his failure to add an additional statement to make it true?\n", "\n", "MR. ENGLERT\n", " That's the same principle, Justice Kennedy.\n", "\n", "JUSTICE KENNEDY\n", " And I don't see why that isn't completely applicable to what the hypothetical that Justice Kagan just gave.\n", "\n", "MR. ENGLERT\n", " There's -- there's --\n", "\n", "JUSTICE KENNEDY\n", " There is a failure to make an additional or qualifying matter in order to make that statement not false. That's exactly the Justice's hypothetical.\n", "\n", "MR. ENGLERT\n", " Justice Kennedy, if I understood Justice Kagan's hypothetical question correctly, it is not fraud within the meaning of 551(2)(b). But let's suppose that I'm wrong about that, okay? Let's suppose that that is fraud. That's still a very far cry from the facts in this case in which the court of appeals had to invoke a regulation that cross referenced another regulation that nobody had cited and said the failure to announce a violation of that violation when submitting a claim is fraud.\n", "\n", "JUSTICE SOTOMAYOR\n", " All right.\n", "\n", "JUSTICE BREYER\n", " I see that. That's to me what's at the heart of this. How do you distinguish those regulations, breach of which are fraudulent when you breach them, and implicit promise not to, from those that not? There are millions of regulations. That's what all the amici are worried about. But now, this is my basic question, and it is a question. The obvious kind of distinction that would seem possible is a contract-based distinction between matters that are material where the whole contract disappears and matters that are sometimes I think called nonmaterial, I'll get the -- I'll forget the exact word, partial, where even though the condition is violated, you don't destroy the contract but you might get damages for that. Now, that's a distinction that every court that deals with contracts is used to applying bread and butter. All right? Normal daily basis. Why not use that same distinction right here?\n", "\n", "MR. ENGLERT\n", " Because this is not a contract case. The government has only --\n", "\n", "JUSTICE BREYER\n", " No, no. What you'd say, of course it applies where the condition that was lied about was material. And there can be implicit lies. Of course, there has to be an implicit lie. But it could be an implicit lie that I did not comply -- you might implicitly imply that you fulfilled provision No. 43876(b) which says paper should be three inches long, okay? Okay. Or there could be an implicit lie that that person in your hospital was a doctor. The first you'd say is not material. The second is material. Now, that I'm asking because I wonder if a distinction like that, drawn from contract law would, or would not, satisfy most of the concerns that are -- are raised in the amicus briefs supporting you.\n", "\n", "MR. ENGLERT\n", " Justice Breyer, it would not satisfy most of those concerns for several reasons. First and foremost, the False Claims Act has its own definition of materiality, which is greatly watered down from the common law. Something that is capable of influencing a decisionmaker is material under the False Claims Act. So materiality doesn't solve the problem. Now let me say also that materiality is, at least arguably, a different element. When I say \"at least arguably,\" the statute actually doesn't say under that it has to be material, but courts have properly read materiality in. But even if materiality is read in, it's a different element on top of a false or fraudulent claim. And I really want to bring this Court back with respect to the four words \"false or fraudulent claim\" because for it to be fraudulent, there must be, as Your Honor said, an implicit lie. And the common law, cases like Junius, Restatements like 551(2)(b), deal with the implicit lie.\n", "\n", "JUSTICE SOTOMAYOR\n", " I'm sorry. I'm totally confused. I always thought that when you asked for payment, you're making a promise: I did what I agreed to do. Pay me, please. That's, to me, what's sort of understood. If I hired you to provide me with doctor services, you ask me for money, I'm assuming you provided me with doctor services. And you know you didn't. Why isn't that a fraud?\n", "\n", "MR. ENGLERT\n", " Because it's a contract breach. Breaking a promise is a contract breach. Some contract breaches are fraud, most are --\n", "\n", "JUSTICE SOTOMAYOR\n", " So providing a gun that doesn't shoot to the Army is simply a contract breach?\n", "\n", "MR. ENGLERT\n", " I don't know, Justice Sotomayor. It depends on the facts of the case.\n", "\n", "JUSTICE SOTOMAYOR\n", " What -- what more facts do you need? Government contracted for guns. All of a sudden you deliver guns that don't shoot. That -- those are the facts that led to this Act.\n", "\n", "MR. ENGLERT\n", " The additional facts I need are what was stated in the claim, what was stated in the regs, what were the reasonable understandings of the contracting parties. And I'm not making these factors up as --\n", "\n", "JUSTICE SOTOMAYOR\n", " Do you think that anybody, except yourself, would ever think that it wasn't a fraud to provide guns that don't shoot if that's what the -- the government contracted for? Whether --\n", "\n", "MR. ENGLERT\n", " Yes.\n", "\n", "JUSTICE SOTOMAYOR\n", " -- they made it --\n", "\n", "MR. ENGLERT\n", " Yes, depending on additional facts, Justice Sotomayor, as stated in Section 551 of the Restatement. If I'm wrong about these hypothetical examples, I'm wrong, but I'm happy to rest on Section 551 of the Restatement as to what \"fraud\" means. Chiarella says as a holding of this Court that the word \"fraudulent\" requires that there be a duty. The Restatement, 551(2), is all about when there is and there isn't a duty.\n", "\n", "JUSTICE SOTOMAYOR\n", " If we don't --\n", "\n", "JUSTICE KAGAN\n", " So I understood --\n", "\n", "JUSTICE KENNEDY\n", " Your earlier argument -- your earlier argument was your point that materiality has its own definition under the Federal contracting statutes, and it's so broad that we can't use it, so we'll just forget about materiality? Is that -- do I understand --\n", "\n", "MR. ENGLERT\n", " No, no. If I may.\n", "\n", "JUSTICE KENNEDY\n", " It's my misunderstanding.\n", "\n", "MR. ENGLERT\n", " The False Claims Act was amended a few years ago, about 20 -- about 30 years ago --\n", "\n", "JUSTICE KENNEDY\n", " Right. Right.\n", "\n", "MR. ENGLERT\n", " -- to redefine materiality. I may be wrong on the timing, but it's been amended to redefine materiality as a very, very low standard. But the point is not use it or don't use it. The point is that before you get to materiality, you have to have a false or fraudulent claim. Materiality is not part of the definition of false or fraudulent. It is an additional requirement beyond the false or fraudulent.\n", "\n", "JUSTICE KENNEDY\n", " That's what I have a hard time understanding. It -- it seems to me we just can't think about fraud unless we have materiality in some sense. And it could be a very strict standard of materiality.\n", "\n", "MR. ENGLERT\n", " Justice --\n", "\n", "JUSTICE KENNEDY\n", " Otherwise, it seems to me, fraud doesn't make much sense.\n", "\n", "MR. ENGLERT\n", " Justice Kennedy, I agree with you. For something to be fraud, it must be fraud as defined by the common law, and it must be material. That's this Court's holding in the Neder case. So yes, I agree with you that to think about fraud, one must have the kind of statement that is fraudulent and materiality and scienter.\n", "\n", "JUSTICE KAGAN\n", " So what I understood you to be saying, Mr. Englert, was that all of these common examples, examples that really led to the False Claims Act, are not fraud. So --\n", "\n", "MR. ENGLERT\n", " Oh, Justice Kagan, that's not what I'm saying.\n", "\n", "JUSTICE KAGAN\n", " Well, let me just give you a few of them.\n", "\n", "MR. ENGLERT\n", " Sure.\n", "\n", "JUSTICE KAGAN\n", " Justice Sotomayor said the government contracts to buy guns; the guns don't shoot. The government contracts to buy boots -- this was all within the context of the Civil War -- the boots fell apart after 12 hours. The government contracts to buy food; the food was rancid. And each of those contractors would come in and would demand payment. And the entire idea behind this statute is that in that demand of payment is a representation. The representation is that I've given you guns that shoot and boots that wear and food that can be eaten. And when -- when that is not true, that is a fraudulent claim. And you're suggesting that all these hypotheticals -- that somehow that's not a fraudulent claim. And I guess that leaves me sort of wondering what do you think would be a fraudulent claim?\n", "\n", "MR. ENGLERT\n", " Two things, Justice Kagan, in response. One, those all may be fraudulent claims. I'm not denying that any of those can be fraudulent claims. And again, Section 551 of the Restatement cover those.\n", "\n", "JUSTICE KAGAN\n", " Well, if those are fraudulent claims --\n", "\n", "MR. ENGLERT\n", " But if I may --\n", "\n", "JUSTICE KAGAN\n", " -- I -- I would think that this is the exact same, is that the contract was for a doctor's medical care, and a doctor's medical care was not provided. A nondoctor's care was provided.\n", "\n", "MR. ENGLERT\n", " May I explain my key disagreement with that analysis? In your question, Justice Kagan, you embedded the proposition that there are implicit representations in the claims. That was not how the False Claims Act was read from 1863 to 1994. The Ab-Tech case, decided by the Court of Federal Claims in 1994, was the very first case after 131 years under the statute to use the implied-certification theory. This -- this concept that's easy to read back to -- graft back onto the Civil War statute, that there was an implied certification is not how people were speaking at the time of the Civil War. It is a new concept. It's something that has been causing the False Claims Act to expand dramatically in the last 22 years, but it is not -- there's nothing at all -- nobody relies on the 1863 legislative. They rely on the 1986 subsequent legislative.\n", "\n", "JUSTICE KAGAN\n", " If I understand what you're saying, you're saying that in representing that you have satisfied the terms of the contract, you are -- or -- or -- let me say that -- I'll start it over. In demanding payment for having satisfied the contract, you are not representing that you are -- that you have satisfied the contract; that's your point? In demanding payment for satisfaction of the contract, you are not making a recommendation that you have satisfied the contract?\n", "\n", "MR. ENGLERT\n", " Not that broadly. Not -- not every jot and tittle of the contract. And there's a policy reason why that's a good rule --\n", "\n", "JUSTICE KAGAN\n", " I'm not into every jot and tittle. I'm into material portions of the contract. That -- you know, that the guns shoot, that the boots can be worn, that the food can be eaten --\n", "\n", "MR. ENGLERT\n", " That -- that --\n", "\n", "JUSTICE KAGAN\n", " -- and a doctor's care is a doctor's care.\n", "\n", "MR. ENGLERT\n", " That is what the Restatement refers to as essentiality, which is a much, much, much higher standard than materiality. And this is where the problem comes in. When essentiality, which does go to the heart of an -- of an implicit representation, arguably is confused with materiality, we have the problems reflected in the light green amicus briefs in this case. Now, the Government's and Respondent's main argument, as I see it, is really not even a textual argument. It is that men must turn square corners when they deal with the government. That's a perfectly fine principle in certain settings but not when a punitive statute is at issue. When punishment is at issue, the relevant principles are instead the principle of constitutional avoidance and fair notice and the rule of lenity. And both of those principles cut very strongly against the implied certification theory. 27 years ago, this Court considered a case of excessive punishment under the False Claims Act called United States v. Halper. It was later overruled in just eight years, but it remains instructive. The judicial instinct to avoid excessive punishments was so strong that the Court let the appellee out of FCA civil liability by invoking the Double Jeopardy Clause. When the Court overruled Halper, it suggested in passing that the Eighth Amendment might be better suited than the Fifth to address constitutional excessiveness concerns. But the recognition by this Court that punishment under the False Act -- False Claims Act is Draconian is of long standing, and that insight to --\n", "\n", "JUSTICE BREYER\n", " How do you want us to write this? The -- you're in an area where billions of dollars are at issue. There -- this is going on a long time. I don't want to write something that's going to upset everybody's expectations in the contract area. On the other hand, the common sense of it, and you just said the words, you said, well, if, in fact, you send in a form which says certainly give me money for supplying the guns or the medical care, something is implied. And you used the word \"essentials\" to describe that. And then I also know that if the agency wants to, it could put a little statement at the bottom saying, I hereby certify I complied with every regulation. And I guess if they -- if they did that, then even you would not have an objection saying your failure to do it while signing was fraud.\n", "\n", "MR. ENGLERT\n", " If it's --\n", "\n", "JUSTICE BREYER\n", " So what am I --\n", "\n", "MR. ENGLERT\n", " If it's in the taking --\n", "\n", "JUSTICE BREYER\n", " From your point of view, this word is \"essential,\" whatever that may mean, which I will look up, how does it work? What's -- what's the correct standard in your --\n", "\n", "MR. ENGLERT\n", " Well, here's how it writes. \"False\" means false. \"Fraud\" means fraud.\n", "\n", "JUSTICE BREYER\n", " Everybody agrees with that.\n", "\n", "MR. ENGLERT\n", " Okay. \"Fraud\" means fraud as reflected in the Restatement, and here's how it writes from a policy dimension, Justice Breyer. The government holds all the keys here. It can change the claim form. It can change the contract. It can go after people for contract violations using the law of contracts and the law of government contracts, which is very specialized. It can go after people for debarment. It can go after people for money. It can go after people for restitution. The government holds all the keys, and indeed the government, frankly, should hold all the keys.\n", "\n", "JUSTICE BREYER\n", " Please, because I have read -- you have lots of good arguments, and I'm not -- I'm asking for advice from you, from your point of view, what the sentence in the opinion should say that describes the circumstances under which the person who submits a form saying, I want a thousand dollars, I just supplied the guns or the medical care, when that person -- and, by the way, there are regs say they have to fire, and the regs say it has to be a real doctor. When has that person committed fraud or -- that's what I want. What is the sentence you want me to write?\n", "\n", "MR. ENGLERT\n", " \"See Restatement of Torts, Section 551 , and Comments j and k, and Illustrations 3 through 8.\" That's the sentence.\n", "\n", "JUSTICE BREYER\n", " 551 --\n", "\n", "MR. ENGLERT\n", " and (e), Comments j and k, Illustrations 3 through 8. I'd like to reserve the balance of my time.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " Thank you, counsel. Mr. Frederick.\n", "\n", "MR. FREDERICK\n", " Thank you, Mr. Chief Justice, and may it please the Court: When a claimant asserts a right to government funds without disclosing that it has knowingly violated the government's material payment conditions, that claim is both false and fraudulent regardless of whether it contains --\n", "\n", "JUSTICE SOTOMAYOR\n", " Mr. Frederick --\n", "\n", "MR. FREDERICK\n", " -- express false statements.\n", "\n", "JUSTICE SOTOMAYOR\n", " -- this confuses me to no end. I don't know why the lower court relied on the Section 423, this -- the director's qualifications and responsibilities when there's a direct regulation that says that the health service will only pay for services rendered by a staff member who's qualified. Why did they go off on this indirect method of analyzing this case?\n", "\n", "MR. FREDERICK\n", " I think the original sin here, if I can express it that way, Justice Sotomayor, was by the district court which was so focused on what were conditions of participation. It used a formulation of conditions of participation versus conditions of payment. And once it constructed that idealogical dichotomy, it was so focused on what the conditions of participation were that it lost sight of the fact that these regulations all work together and in a way --\n", "\n", "JUSTICE SOTOMAYOR\n", " But there's a regulation right on point.\n", "\n", "MR. FREDERICK\n", " I understand, Justice Sotomayor. And had I been fortunate enough to litigate the case in the district court, we might have cited that provision. But I would point out that the key point here -- and I don't think the other side disputes this, is that when you're providing mental healthcare to teenagers and other children, it should be supervised, and it should be given by people who have the proper license. I don't think that it takes any great leap of essentiality or materiality or intrinsicness or whatever words the Petitioner wants to come up with, that's pretty basic. And the violation that occurred here was one that is all over the mass health regulations. You can look at it in the supervisor, the clinical director's requirements to maintain supervision, which is what the First Circuit relied on; if you look at the express payment condition, which is .441(a), it expressly links to .424, which lays out all the qualifications of the nurses and the social workers and the psychologists --\n", "\n", "CHIEF JUSTICE ROBERTS\n", " So is your -- is your position that every material breach of a contract gives rise to a False Claims Act -- a claim under the False Claims Act as false and fraudulent?\n", "\n", "MR. FREDERICK\n", " No. Our position is that there are two other requirements in the Act. One is that they be done knowingly. And under the statute, the definition of \"knowing\" has three features, with knowledge, deliberate indifference or reckless disregard. So there is a knowledge requirement that has to be done, and I would point out, Justice Breyer, that actually solves virtually every problem in the Petitioner's amici because they are talking about situations in which they are not focusing on the knowledge requirement of the fraudster who is seeking to get government funds.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " So -- so if -- I know you've got another one, and I want to keep that in mind, but if it's a situation where the alleged material breach is of Massachusetts Regulation 185 , , or whatever, you -- the claimant would have to show knowledge of that regulation?\n", "\n", "MR. FREDERICK\n", " Knowledge that -- that when it was breaching it, it was going to be material to the government. That's the second part of what I think is important.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " So, I guess, I mean that --\n", "\n", "MR. FREDERICK\n", " So --\n", "\n", "CHIEF JUSTICE ROBERTS\n", " That causes concern, of course, because there are thousands of pages of regulations under Medicaid or Medicare programs. And I guess your -- your position would precipitate litigation over whether or not the person who said, here's our bill, knew about -- knew under the reckless and whatever standard, about the particular regulation that the government or the relator is claiming made the submission fraudulent?\n", "\n", "MR. FREDERICK\n", " The court test, Mr. Chief Justice, is whether the State could reject the claim for reimbursement, whether it had a basis in rejecting it because it was a material claim. It's a --\n", "\n", "CHIEF JUSTICE ROBERTS\n", " But I thought you said --\n", "\n", "MR. FREDERICK\n", " -- material violation. So if it was a material violation --\n", "\n", "CHIEF JUSTICE ROBERTS\n", " Yes.\n", "\n", "MR. FREDERICK\n", " -- and the government had a basis for rejecting the claim in saying your services do not cover reimbursement --\n", "\n", "CHIEF JUSTICE ROBERTS\n", " I understand that.\n", "\n", "MR. FREDERICK\n", " -- it becomes a fraudulent or false claim if the claimant omits telling the government that there was something material --\n", "\n", "CHIEF JUSTICE ROBERTS\n", " Well, but I thought your point was the first thing is that the claimant has to know about it.\n", "\n", "MR. FREDERICK\n", " That's correct.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " It has to know about the particular requirement in the regulation.\n", "\n", "MR. FREDERICK\n", " That's correct. And it has to know that it was important to the government. It was a material condition for the government, that the government could reject payment on this basis.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " But it has to know not only about the particular provision but that it was material and the government wouldn't pay without it.\n", "\n", "MR. FREDERICK\n", " That's correct. And that's why, Justice Kennedy, to go back to your question, the key Restatement provision here is not 551, it's 529, which we've cited in our brief at page 29, and which essentially is not discussed in the opening presentation by my friend.\n", "\n", "JUSTICE BREYER\n", " But here, looking -- looking at what you just said, you said the three conditions are where it's not written on the form, and the -- the submitter has to know about it, second, he -- it has to have been material.\n", "\n", "MR. FREDERICK\n", " Correct.\n", "\n", "JUSTICE BREYER\n", " And, third, he has to omit telling the government about it.\n", "\n", "MR. FREDERICK\n", " That's right.\n", "\n", "JUSTICE BREYER\n", " Okay. Now, I look at the two things he talked about in the Restatement, and he says matters known to him that he knows to be necessary to prevent his partial or ambiguous statement from being misleading -- boy, that's pretty close to what you said -- and then (e) is facts basic to the transaction if he knows the other is about to do it under a mistake. What's the difference between -- I mean, I know the people are experts, and this will tell me there are huge differences. But what's the difference between what you just said and what he said?\n", "\n", "MR. FREDERICK\n", " Well, I think that the difference is that I think there's an easier Restatement provision that is more directly on point. And if I could just quote from our brief at page 28 to 29. We quote the Restatement, Section 529: \"A representation stating the truth so far as it goes but which the maker knows or believes to be\" materialness -- \"materially misleading because of his failure to state additional or qualifying matter is a fraudulent representation.\" Here --\n", "\n", "CHIEF JUSTICE ROBERTS\n", " But it's got to be -- he has to know about the specific provision in the regulation.\n", "\n", "MR. FREDERICK\n", " That's correct. That's correct. But here, Mr. Chief Justice, I think that it would be odd to suppose that in what are 28 provisions of the Mass Health regulations in what is a massive program involving, you know, billions of dollars, where their business model is predicated on serving indigent people so that they can get access to Medicaid-reimbursed funds, that they would read the regulations. And a number of them say it is critical to provide supervision when you're providing mental health care.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " Okay. So you think it's an easy case to prove, in other words, because they would have necessarily known that. But what they have to know is of that regulation, whatever one of the 28 it is, and they have to know that the government will regard that as material.\n", "\n", "MR. FREDERICK\n", " That's correct. But -- but the key point here, Mr. Chief Justice, is I don't think that that should be a difficult case. Now, the other side spends a lot of time talking about worthless services, and they seek in their brief at pages 37 and 38 to say that the standard is only when these goods are so worthless or the services are so worthless, that it would be rather obvious. And I would point out that if the worthless services are recoverable under the False Claims Act, then it is okay to have an implied certification theory. They have essentially conceded that if the goods are completely worthless, it would be okay for the government to bring a False Claims Act case. Now, I would submit that if the goods are partially worthless, if -- those have also to be recoverable because there's no clear way to draw a line between those that are partially worthless and those that are completely worthless. Let me give you a simple example. Here, under what I understand Petitioner's theory to be, if Petitioner had gotten some college interns who were studying psychology, and it decided to allow those interns to practice in their medical facilities, and those college interns gave what was called therapy to teenagers, under their theory, they don't have to tell the government that these are college interns who don't have college degrees, or certifications, or licenses required by the State, and it is A-OK to charge the government full freight. Not only for the service, but under .408, they're also charging with the representation that they have embedded in a supervision cost.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " I suspect most cases are a little more complicated than that, and that's where the difficulty comes in when you have hundreds, thousands of pages of regulations. And typically not -- probably not the government. They didn't in this case. They didn't pick up the -- the false claim; it was the relator. And the relator comes in and says, well, you didn't -- you violated the provision, not that the college intern is a doctor, but that -- whatever it is. You know, you have to use this particular syringes or drug company, and, in fact, you didn't. And, therefore, blah, blah, blah. And I guess that's where the problem comes in, in that it's a little more complicated than that. And I just don't know if I can take your abstract hypothetical and transfer it to the reality of government contract.\n", "\n", "MR. FREDERICK\n", " Well, let me -- let me go with the core of what I think the concern is in your statement, and in the position by the amici on the other side, and it's that we don't have enough notice. We don't know what's really important to the government. That's their basic problem. Right? Now, they don't solve that problem under either of the two theories that they present in their case. If notice is the problem, the government could solve that by having the check-off box -- I think, Justice Breyer, you were the one who mentioned this -- that says, I certify I've complied with all the regulations. Well, that doesn't give them any notice. And it doesn't give them any notice if, attached to the contract claim form, the Federal Acquisition Regulations or the Department of Defense regulations or the HHS regulations are copied. We would just be killing forests in order to generate that. That doesn't give them any more notice either, Mr. Chief Justice.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " Well, but it will, because it changes the reality. They're going to look at that, and they're going to say, wow. Every single thing we're going to get in trouble in a False Claims Act. So our bid is going to be a little bit higher to cover that potential risk.\n", "\n", "MR. FREDERICK\n", " These are not bid-ask situations, by and large, Mr. Chief Justice. These are in the healthcare area under entitlement programs in which the government is setting the rate and in which the person is saying, I'm providing service in compliance with the Federal statutes and the regulations, and, therefore, I have a legal entitlement to receive reimbursement. So in that scenario, the problem is that what they really want is for the government to pick and choose among the things that are most important, and once you do that, you're creating a roadmap for fraud. Because all you're doing -- every time you omit something that might be material in any particular circumstance, but it's not specified in the list of the absolutely most critical things, you're just inviting them to say we're not complying with it.\n", "\n", "JUSTICE BREYER\n", " So what has it done? What has the government done when they certify things? Do they say things like, I hereby certify that I complied with all material regulations? What do they say?\n", "\n", "MR. FREDERICK\n", " Well, there's some provisions that have certification requirements. But I would point out that even if you were to do that, it's not going to solve most of --\n", "\n", "JUSTICE BREYER\n", " No, I agree with you.\n", "\n", "MR. FREDERICK\n", " -- because of grant programs. There are Federal dollars that are going to third parties in which people are engaging in contracts with third parties and they are being paid by the Federal government. And in those kinds of situations, even your kind of basic certification isn't going to work. So the problem here, Mr. Chief Justice, fundamentally, is one where the two elements of materiality and knowledge are going to solve the vast bulk of the problems. Because if the claimant is acting negligently or at a lower standard, simply just missed it, that's not going to be a case that will be actionable under the False Claims Act. And, furthermore, if the claimant is asking for something that the government doesn't deem to be material, in which the test would be can the government withhold payment, then that isn't going to be actionable under the False Claims Act either. And notably, the other side has a lot of amicus briefs, but they don't really point to any specific cases. And if you look at Professor Angstrom's amicus brief, he is the leading scholar on what has happened with the False Claims Act empirically. He has studied all 6,000 filings since 1986, and he's charted what they -- what's happened to them. And his conclusion is that not only has there been no spike as a result of the implied certification theory having been adopted, but that, in fact, the problems that are identified don't actually come to pass because the vast bulk of the cases that are not intervened in by the government, in fact, are done at a motion to dismiss. And so I would submit to you that if you looked at the actual data for the False Claims Act, a lot of what you would conclude on the basis of the other side is hyperbole. There is a lot of fear, but it comes down to two points: One is they would like to have notice so that, presumably, they don't have to comply with the things that the government doesn't more specifically reticulate in its rules. And they want to be able to know, if they want to get around that, what are the key things that they have to get around. I would submit to you that in the Civil War, as Justice Kagan's hypotheticals pointed out, there was a problem of implied certification because contractors were selling boots that were made out of cardboard, not leather, and guns that didn't shoot, and mules that were not live and whole mules. And that is exactly the same kind of problem that we're talking about now over 150 years later, with respect to mental health services that are not being provided by licensed and supervised professionals. Thank you.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " Thank you, counsel. Mr. Stewart.\n", "\n", "MR. STEWART\n", " Mr. Chief Justice, and may it please the Court: The statute refers to false or fraudulent claims, and I think there are two different but complementary analytic routes that the Court could take to conclude that, if the facts alleged in Respondent's complaint are true, false or fraudulent claims were submitted. One way to look at this is to focus on the fact that in Medicaid, as in other government entitlement programs, a person who submits a claim is not simply asking for money; he is representing that he has a legal entitlement to be paid. And you can say, if a person asserts that he is legally entitled to be paid, and he knows that he has no such legal entitlement, the claim is false. And then you would ask, under what circumstances would a person know that he had no legal entitlement to be paid? And the answer would be, if the person knows that he has failed to comply with a material term of the contract or a material regulatory requirement, by definition, the government will have no obligation to pay, and the claim of legal entitlement will be false. And I think, Justice Breyer, you were exactly right in pointing to the law of contracts which draws a distinction between material and nonmaterial terms. And the purpose of that distinction is to identify the situation in which a breach by one party will excuse the counterparty's failure to perform. And so a -- if the government is obligated to pay money and the contractor makes certain corresponding performances, if a nonmaterial term is breached, the government's obligation to pay remains intact. And so a person who knew himself to be in breach of a nonmaterial term and requested payment anyway wouldn't be making a false claim. He would be claiming a legal entitlement to be paid; he would be entitled to be paid because the breach wouldn't excuse the government's payment obligation. But if the term that was being breached was material, the claim of legal entitlement would be false. The other analytic route that you could take to -- to get to the same result in this case really follows up on Justice Kagan's hypothetical about the situation in which there is a contract for services to be performed by a doctor, and the -- the person who has arranged for services to be provided by someone else comes in and says services have been performed; pay me. And it seems like clear fraud under 529 and 551 under the Restatement. You have made a representation, services have been performed. Explaining that they were performed by a nondoctor under the circumstances is essential to make that representation nonmisleading. And what we have here, at least if the facts are as alleged, is basically the same thing. The complaint recites that in requesting payment, Universal Health Services submitted various invoices, and they used billing codes, five-digit numbers that were determined by -- identified by MassHealth as the codes you use for particular types of services. One of them corresponded to individual therapy, one to group therapy, one to family therapy. Now obviously, the claims would have been false if no services had been provided at all. And I assume everyone would agree that if MassHealth -- I'm sorry -- if Universal Health Services had billed for services provided in a group setting but had used the code that MassHealth had identified for individual therapy, that would have been a false claim because MassHealth is entitled to treat the use of that code as a representation that the services were -- were performed individually. And, really, it's no -- it's not a large leap to say when you use the code for individual therapy, you are representing by -- that the services were performed, the treatment was performed by a person who was legally authorized to provide mental health therapy under Massachusetts law. Now, unlike the contract hypothetical that Justice Kagan identified, in determining what implicit representations are being made, we wouldn't look to the previous promise that the person had made because there's no contract. We would look at the MassHealth regs that identify who -- what kind of credentials do you have to have to perform particular types of mental health services and would --\n", "\n", "CHIEF JUSTICE ROBERTS\n", " How do you tell -- Mr. Stewart, because at least under Mr. Frederick's view you have to have knowledge that the government wouldn't pay. I assume the government wouldn't pay even for nonmaterial provisions. I mean, if you're supposed to pay -- you know, for $100,000 you're going to provide these services, and you don't provide small service? You still pay, but you wouldn't pay for that. I mean, I don't understand that, how some things are material -- does it go pay at all, or -- or carve out a particular provision? When -- when is the government -- when is there going to be not performance of a contract and the government's going to pay for that anyway?\n", "\n", "MR. STEWART\n", " Well, I think if we got a bill for particular services and the services had been essentially performed as they were expected to be, the government's policy objectives were adequately advanced but some technical requirement had not been complied with, that if it's a nonmaterial term, then by definition, it wouldn't excuse the government's duty to perform.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " Okay. So the contract is to provide all these health services, and by the way, you've got to buy, you know, staplers made in the United States, not -- not abroad. And they do everything, but they don't buy staplers made in the United States. I would say the government, if they're, you know, rigorous contracting officers, would say okay, you get, you know, 99,000 whatever, but we're going to penalize you because you didn't use staplers -- we put that in there for a reason, you didn't do it, so we're going to withhold $100, right?\n", "\n", "MR. STEWART\n", " We would certainly agree that in government contracting it's sometimes the case that the government's trying to serve ancillary policy objectives such as buy America, et cetera. And so if under the terms of the agreement and the -- the law of contracts, the government would be legally entitled to withhold payment or a portion of the payment in that circumstance, then that would be a false claim.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " Not -- if that would be --\n", "\n", "JUSTICE KAGAN\n", " If --\n", "\n", "CHIEF JUSTICE ROBERTS\n", " -- a false claim --\n", "\n", "MR. STEWART\n", " It --\n", "\n", "CHIEF JUSTICE ROBERTS\n", " -- and then they could bring -- and a relator can sue for that, then I don't understand the difference between material and immaterial.\n", "\n", "MR. STEWART\n", " Well, if it -- if it was the case -- I mean, it may be that you -- that your more expansive conception of material terms is correct, and that there would be some circumstances that I hadn't envisioned in which the government could lawfully withhold payment, even though the violation seemed fairly tangential to the claim. If that's the case, all it means is that the --\n", "\n", "JUSTICE KAGAN\n", " What are examples of --\n", "\n", "CHIEF JUSTICE ROBERTS\n", " I'm sorry. Just -- all it means is?\n", "\n", "MR. STEWART\n", " All it means is that there would be more expansive False Claims Act liability, but not because we would be punishing people who didn't cheat the government. If -- if knowledge of the particular breach at issue could have led responsible government contracting officers to withhold payment wholly or in part, and the person --\n", "\n", "JUSTICE BREYER\n", " Well --\n", "\n", "MR. STEWART\n", " -- knows that he is in breach, he should be made --\n", "\n", "JUSTICE BREYER\n", " The wholly or in part, now -- now, I just copied out of the Horn book the basic difference between a material breach and a partial or nonmaterial breach of contract. A material breach of contract is a contract that -- a breach that allows one party to repudiate the contract. A nonmaterial breach is a breach that gives rise to damages but cannot serve as the basis for repudiation. Now, until this last interchange, I thought that was the distinction you were drawing, that if the piece of paper says nothing, but pay me, and there is a violation of a reg, if the violation of that reg is such to be material, meaning, it would be a basis for repudiation, then it is an implied -- then it is an implied statement. It was complied with, and it's fraud. But if it's just staples, you may have to pay damage for staples, but that certainly doesn't -- to say the contrary there would make the contractor responsible for having complied with every one of 40,000 regulations, the size of the room, size of the table.\n", "\n", "MR. STEWART\n", " Well, I mean, first, there is a distinction between situations in which one contracting party could sue for damages, and situations in which one contracting party could refuse to perform --\n", "\n", "JUSTICE BREYER\n", " Yes.\n", "\n", "MR. STEWART\n", " -- its own obligations under the contract, including payment. But I think the second thing is that the scienter requirement really is crucial here. It applies both to knowledge of the breach, and knowledge that it is material to the government. The only other thing I wanted to -- to clarify in response to -- to your question is, we would say the test is whether the person knew that the government could lawfully withhold payment, not necessarily --\n", "\n", "CHIEF JUSTICE ROBERTS\n", " Withhold payment, but not repudiate the contract.\n", "\n", "MR. STEWART\n", " Withhold payment on the particular claim, because there would certainly be plenty of situations in which, if somebody billed for services that were not reimbursable under the terms of the particular program, there --\n", "\n", "CHIEF JUSTICE ROBERTS\n", " In other words, if they don't -- if they put the wrong billing code down, and, you know, you shouldn't have to pay them. But I don't know that means you can say, okay, you're fired as our Medicare provider in the State of Massachusetts, which is what I understand materiality in the contract concept to be. But what you're saying is it's a false claim if it's -- and, you know, you said you were providing X-rays and you didn't. Okay. But -- and that's material, I would think, in the sense that you have to pay for it. You shouldn't pay them for it, but I don't know if it's material in the sense that you can get out of the whole --\n", "\n", "MR. STEWART\n", " Then I would say material in the sense of allowing the government to decline to comply with its corresponding obligation to pay for that particular shipment or those particular services, because we certainly, as you say --\n", "\n", "JUSTICE SOTOMAYOR\n", " Well, but that doesn't answer the question. There's a miscoding that's intentional and knowing, and there's a miscoding that's negligent.\n", "\n", "MR. STEWART\n", " Exactly.\n", "\n", "JUSTICE SOTOMAYOR\n", " So if it's a mistake, you could withhold payment, but you can't sue under the False Claims Act, correct?\n", "\n", "MR. STEWART\n", " Exactly. And there is a mental state that the FCA contemplates between negligence and actual knowledge, because it defines the term \"knowingly\" to include recklessness and --\n", "\n", "JUSTICE KAGAN\n", " Mr. Stewart -- I'm sorry.\n", "\n", "MR. STEWART\n", " Go ahead.\n", "\n", "JUSTICE KAGAN\n", " Could you just -- what are immaterial terms for the government? I mean, give me some examples. What would count as not material?\n", "\n", "MR. STEWART\n", " I mean, I don't know if there are any terms that are wholly immaterial, because if there were, presumably they wouldn't be in the -- the agreement or the -- the regulations. But there are certainly terms that would be immaterial to particular claims. So, for example, if the government had a rule that said at all times, a hospital that is receiving Medicaid reimbursement has to have the following equipment in its operating room. It might well be the case that a violation of that requirement would disentitle the claimant to payment for -- for surgical services performed, but would not disentitle the claimant to payment for services that had nothing to do with use of the operating room. And so to follow up on what I was saying before, I think what we have here is really a fairly close variant on the hypothetical that -- that you floated, the case in which they represent that they performed individual therapy. They don't say that the person who performed it was not legally authorized to render billable services under the MassHealth program. That would seem to be a classic case of implied misrepresentation, fraudulent omission, et cetera.\n", "\n", "JUSTICE KAGAN\n", " When you started and you said that there are two ways in which this could be argued, do you have a preference as to which one of those two ways makes most sense, or are there cases where they diverge, and we should be aware of that?\n", "\n", "MR. STEWART\n", " I think this -- probably the one that would be most helpful to the government is the first one: That if you assert a claim of legal entitlement to be paid and you know that you are not legally entitled to be paid or are reckless as to that fact, the claim is -- the claim is false and it's knowingly false. That -- that would be the one that's most helpful to the government just because there are so -- there's such variations in the nature of the documentation that is provided by claimants under various government programs. That -- that general rule would be of the greatest health -- help. The second I offer, really because in a sense, it's an easier way to decide this case. If the government was not -- I mean, I'm sorry -- if the Court was not ready yet to decide whether the broader proposition was correct, it could still say, in this case, there was not simply a claim for a particular dollar amount. There was at least a little bit of detail as to what were the nature of the services to be performed. And giving that detail without giving the offsetting fact, if it is a fact, that the services were performed by noncredentialed, unsupervised people, would render the -- the statement that was made misleading. The last two things, if I -- if I could just say them very briefly, Mr. Englert referred to the newness of implied certification. The term \"implied certification\" is new. I don't believe it was used until the last 25 years or so. But the concept that a person can be held liable for fraud even though he says nothing explicitly false but labors to create a false impression, that's been around for ages. The second thing is, Mr. Englert said that the current FCA adopts a watered-down version of the materiality requirement. I think if you compare the current statutory definition to this Court's formulation of the traditional materiality standard in Neder, in Gaudin, in Kungys, that the current statutory definition is drawn essentially verbatim from this Court's description of what material -- materiality had traditionally been at common law.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " And, Mr. Stewart, both United States and Massachusetts did not intervene in this case; is that right?\n", "\n", "MR. STEWART\n", " That's correct.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " Why is that?\n", "\n", "MR. STEWART\n", " We don't -- I don't know the answer, and we don't typically give public explanations of why we don't intervene. Sometimes it's because the dollar amount is small. Sometimes it's because the -- we think that the relator is capable of handling the case himself, or the relator's counsel. Sometimes we do decline to intervene, because we're skeptical of the merits of a case. But even in those situations, it could be that we agree with the relator's theory and simply don't know whether the facts could be proved. It comes in all variations. I -- our amicus brief is obviously the -- the best evidence of what we believe the correct legal rule to be. The only other thing I would say is that our decisions about whether to intervene in particular cases would be skewed if we believed that courts would draw from our failure to intervene an adverse inference as to our views on the legal theory. If we felt that we would be made to seem skeptical of the implied certification by not intervening, we'd feel pressured to do it.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " Thank you, counsel. Eight minutes, Mr. Englert.\n", "\n", "MR. ENGLERT\n", " Thank you, Mr. Chief Justice. The False Claims Act uses words drawn from the common law of torts, not words drawn from the common law of contracts. This is Henry Steiner and Duncan Kennedy, not Charles Fried. The test, as stated by my friends on the other side, is the core test is whether the State could reject the claim for reimbursement. That is a contract standard; that is not a tort standard. And if this Court accepts that version of the implied-certification theory, it will be much broader than anything the lower courts have ever done, and a parade of horribles in the light green amicus briefs would cite many horrible cases. Mr. Frederick says they cite none. They cite many real-world horrible cases. That would be the tip of the iceberg if this Court accepts their theory. It has been suggested that everyone knows that it's common sense and that it's obvious that people who provide counseling services to teenagers must be licensed. Well, apparently, the Commonwealth of Massachusetts doesn't find it obvious. Section 429.424(E)(1), quoted on page 8 of our opening brief, states the standards in which \"counselors and unlicensed staff may provide counseling services.\" If it's so obvious, why did the First Circuit have to rely on a regulation that applies only to satellite facilities? When the First Circuit found a regulation that no one had cited in all of this litigation, it didn't cite one that applies to every facility. It cited one that applies only to satellite facilities. And yet, we're told it's so obvious that my clients should have known that, and that there is materiality and scienter in this case. Volume II of the Joint Appendix contains seven complaints to State agencies, four reports by State agencies, two consent decrees, and four other documents. They cite many, many, many, many regulations. This morass of regulations, bluntly, is worse than the Internal Revenue Code. It's full of cross-references; it's full of contradictions, as the First Circuit itself acknowledged in footnote 15. The way the First Circuit resolved the contradiction was to refer to the nonpromulgating agency; so it's Chevron on steroids. These things are not obvious. These regulations are not obvious. Now, Mr. Frederick and Mr. Stewart, and in particular Mr. Frederick, may seem to have scored a blow when he put -- said fraudster shouldn't get to pick and choose which regulations they comply. Well, if you assume fraud, if you put the rabbit in the hat, you can take the rabbit out of the hat. People should pick and choose which regulations they comply with. Why? Because there's so many and confusing. And who holds the keys to telling them which regulations to comply with? The regulating agency or the contracting agency. If the contracting agency or the regulating agency says, please focus on this regulation because it really matters, guess what? People will focus on the regulation because they know it really matters. If relators come in after the fact, not the Commonwealth of Massachusetts, not the United States, but relators come in after the fact and say, this was so critical that you should have known and you acted -- it was material, it was essential, and you acted with scienter, and they get treble damages, attorney's fees, $5500 or more, $5500 minimum per claim civil penalties, and the opprobrium of calling someone a fraudster, that's not the system in which the regulators have control. That is not the administrative state we know. That is a game of got-you, after-the-fact got-you.\n", "\n", "JUSTICE BREYER\n", " How does it differ, what you just said, from this thing in the Restatement where you say it would be fraud, facts basic to the transaction or matters known, that he knows to prevent his statement from being misleading? The statement is, implicitly, I did the work. And this kind of problem, is it or is it not, basic to the transaction that the doctor be certified, is the kind of thing that I think you and other lawyers argue very well on opposite sides, as you just did. But the standard you advocate is, according to the Restatement, misleading statement about a fact basic to the transaction, misleading, implicitly, I did it. Truth? I didn't. You see, I'm saying your standard gives rise to the same problem, doesn't it?\n", "\n", "MR. ENGLERT\n", " No.\n", "\n", "JUSTICE BREYER\n", " Why?\n", "\n", "MR. ENGLERT\n", " Because the common law has worked through these problems, Justice Breyer. The common law of torts, not the common law of contracts. Look at illustrations 3 through 8 of the -- of the Restatement. But if that doesn't do it for you, think about the dog that didn't bark in the room. Look for common-law fraud cases that state their theory. You won't find them. You won't find them. They don't exist. This is a theory made up by the plaintiffs' bar in the last 22 years, and it has run amok. There is a parade of horribles in the light green amicus briefs. There is a parade of horribles in the red -- in the dark green amicus briefs. Their parade of horribles is that it would be A-OK to do these things. It's not A-OK to do these things. There are calibrated remedies administered by the government for breach of contract, for violating regulations. The Massachusetts authorities had calibrated remedies in this case: Two years of suspension and a $1,000 fine. They didn't ask for any money back. They didn't ask for any money back. They didn't say, this is the kind of thing that is so basic that you should give us our money back. They said, we need some corrective measures. These are services for poor people. These are --\n", "\n", "JUSTICE SOTOMAYOR\n", " Let's not forget something. Money came from the Federal government. It may be a system in this cooperative program that's flawed, but Massachusetts Health has no incentive to seek the money back because they're not paying it. The people with the incentive are the Federal government, and that's why we have the False Claims Act, because the Federal government can't enforce all seeking of money back in these cooperative programs.\n", "\n", "MR. ENGLERT\n", " Okay. But it has to be a false or fraudulent claim, which are terms derived from the common law, construed in this Court's cases, elaborated through the common law --\n", "\n", "JUSTICE SOTOMAYOR\n", " I have a very hard time accepting that if you provide -- if you claim money for a service that you don't render, not a qualified individual, unsupervised by a qualified individual, which is a requirement specifically in the regulations, I'm having a hard time understanding how you have not committed a fraud --\n", "\n", "MR. ENGLERT\n", " Your Honor, all the --\n", "\n", "JUSTICE SOTOMAYOR\n", " -- if you knew what you were doing.\n", "\n", "MR. ENGLERT\n", " All that was submitted was a request for payment. The government controls what it will require in a request for payment. There is no allegation of a false statement in the request for payment. The only allegation is that every jot and tittle of every MassHealth regulation is incorporated as long as it's approved --\n", "\n", "JUSTICE SOTOMAYOR\n", " I don't think that it's every --\n", "\n", "MR. ENGLERT\n", " -- under scienter.\n", "\n", "JUSTICE SOTOMAYOR\n", " -- provision.\n", "\n", "MR. ENGLERT\n", " Well, Your Honor, it's --\n", "\n", "JUSTICE SOTOMAYOR\n", " But I think it's a very basic provision --\n", "\n", "MR. ENGLERT\n", " Your Honor, with respect --\n", "\n", "JUSTICE SOTOMAYOR\n", " -- when you say, I performed this service, that you performed a service in accordance with the contract.\n", "\n", "MR. ENGLERT\n", " And in seven complaints to administrative agencies, in the -- in the operative complaint in this case, amended many times, why is not the regulation the First Circuit relied on even cited? Why is the regulation Mr. Frederick says he would have used if he had been litigating this case in the district court even cited? It proves my point, Your Honor, that this is a morass. And for one to think, after the fact, this is basic and central and this is fraud, is a plaintiff's lawyer's game. Thank you.\n", "\n", "CHIEF JUSTICE ROBERTS\n", " Thank you, counsel. The case is submitted.\n", "\n" ] } ], "source": [ "n = -5\n", "\n", "uuid = list(section_data.keys())[n]\n", "for k, v in section_data[uuid]:\n", " print(k)\n", " print(\" \" + v)\n", " print()" ] }, { "cell_type": "code", "execution_count": 12, "id": "586d12bc", "metadata": {}, "outputs": [], "source": [ "from collections import Counter\n", "\n", "speaker_turns = Counter()\n", "speaker_text = Counter()\n", "for uuid, sections in section_data.items():\n", " for speaker, text in sections:\n", " speaker_turns[speaker] += 1\n", " speaker_text[speaker] += len(text)" ] }, { "cell_type": "code", "execution_count": 40, "id": "66428c71", "metadata": {}, "outputs": [ { "data": { "text/plain": [ "Counter({'CHIEF JUSTICE ROBERTS': 16685,\n", " 'MR. 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VAN AKEN': 47})" ] }, "execution_count": 40, "metadata": {}, "output_type": "execute_result" } ], "source": [ "speaker_turns" ] }, { "cell_type": "code", "execution_count": 27, "id": "7eaae892", "metadata": {}, "outputs": [ { "name": "stdout", "output_type": "stream", "text": [ "MS. KOMP\t1\n", "MS. GOLDBERG\t1\n", "MR PHILLIPS\t1\n", "MR. CHELSER\t1\n", "MR ROWLEY\t1\n", "JUSTICIE SOTOMAYOR\t1\n", "JUSTICE BREY ER\t1\n", "JUSTICE SCLIA\t1\n", "MS. PARKER\t1\n", "MR. HARRINGTON\t1\n", "JUSTICE KENNEY\t1\n", "MR. FISCHER\t1\n", "GINSBURG\t1\n", "MR. MCALLISTER\t1\n", "MR. MR. OLSON\t1\n", "MR CAMPBELL\t1\n", "MR. GUARNIER\t1\n", "MR GEYSER\t1\n", "MR. O'CONNELL\t1\n", "JSUTICE BREYER\t1\n", "JUSTICE BEYER\t1\n", "MR. UNIKOWKSY\t1\n", "JUST ALITO\t1\n", "JUSTICE PHILLIPS\t1\n", "CHIEF JUSTICE BREYER\t1\n", "MR. CHEMERINKSY\t1\n", "MR. HEYTEN\t1\n", "CHIEF JUSTICE\t1\n", "MR. GUARNERI\t1\n", "GENERAL KAGAN\t1\n", "MS. SANDERS\t1\n", "MR DELANEY\t1\n", "JUSTICE TO KAVANAUGH\t1\n", "MS CAIN\t1\n", "MR .MC LEESE\t1\n", "JUSTICE SOTOYMAYOR\t1\n", "MR. RUSSEL\t1\n", "MR. SOTOMAYOR\t1\n", "MS. BROWNING\t1\n", "JUSTICE BRYER\t1\n", "MR BENSINGER\t1\n", "JUST KAGAN\t1\n", "MR HEYTENS\t1\n", "CHIEF JUSTICE GORSUCH\t1\n", "MR. SELLER\t1\n", "MR GANNON\t1\n", "MR. SACHS\t1\n", "MS BENNETT\t1\n", "MR. WANG\t1\n", "JUST GORSUCH\t1\n" ] } ], "source": [ "for a, b in pd.Series(speaker_turns).sort_values(ascending=False).tail(50).iteritems():\n", " print(a + \"\\t\" + str(b))" ] }, { "cell_type": "code", "execution_count": null, "id": "2a1f74b7", "metadata": {}, "outputs": [], "source": [ "# do fixups (disambiguation) for less <= counts of speakers" ] }, { "cell_type": "code", "execution_count": null, "id": "dab57916", "metadata": {}, "outputs": [], "source": [ "# JUST ALITO -> JUSTICE ALITO (14-378)\n", "# CHIEF JUSTICE BREYER -> JUSTICE BREYER (11-204)\n", "# MS BENNETT -> MS. BENNETT (17-340)\n", "# JUSTICIE SOTOMAYOR -> JUSTICE SOTOMAYOR (16-1371)\n", "# MR .MC LEESE -> MR. MC LEESE (09-6822)\n", "# MR. MC LEESE -> MR. McLEESE (09-6822)" ] }, { "cell_type": "code", "execution_count": null, "id": "87d4241f", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "code", "execution_count": null, "id": "29823871", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "code", "execution_count": 39, "id": "4ccafb87", "metadata": {}, "outputs": [ { "name": "stdout", "output_type": "stream", "text": [ "09-6822\n" ] } ], "source": [ "for uuid, sections in section_data.items():\n", " b_found = False\n", " for speaker, text in sections:\n", " if speaker == \"MR .MC LEESE\":\n", " print(uuid)\n", " b_found = True\n", " break\n", " if b_found:\n", " break" ] }, { "cell_type": "code", "execution_count": 33, "id": "40fac6b9", "metadata": {}, "outputs": [ { "data": { "text/plain": [ "[['CHIEF JUSTICE ROBERTS',\n", " 'We will hear argument next this morning in Case Number 11-1118, Gunn v. Minton. Ms. Webre?'],\n", " ['MS. WEBRE',\n", " 'Mr. Chief Justice, and may it please the Court: In Grable, this Court explained that \"arising under\" jurisdiction demands, not only a contested Federal issue, but a substantial one embedded in a State claim in order to indicate whether there is a serious Federal interest in exercising Federal jurisdiction over the State claim. This Court should reverse the judgment below because Minton -- Mr. Minton\\'s claims do not present a substantial Federal issue, and exercising Federal jurisdiction over his claim and legal malpractice claims like his, State legal malpractice claims would --'],\n", " ['JUSTICE GINSBURG',\n", " 'The question is whether the experimental use -- whether that was a viable theory. Why isn\\'t that a substantial -- what do you mean by, \"substantial\"?'],\n", " ['MS. WEBRE',\n", " \"Well, Your Honor, defining substantiality is a difficult point. I -- I would answer in two layers. First, Mr. Minton's claim did not involve a legal question of does the -- how does the experimental use doctrine work; how is it applied, what are its parameters? The question was did his fact-bound and situation-specific affidavit present relevant evidence of the application here in this particular case. And it is not a substantial question because, first, from a -- a unique case perspective, it involved merely a hypothetical determination. There were no actual patent rights that would be at issue. Those were already fully, finally, irrevocably determined in the underlying patent litigation in Federal court. And, second, from a jurisprudence standpoint, the -- the question of uniformity of patent law, any decision by a State court, in Mr. Minton's legal malpractice claim, would not be binding in any way, on either the PTO in a patent application, or on any subsequent Federal court deciding a real patent case.\"],\n", " ['JUSTICE GINSBURG',\n", " 'Do you mean substantial beyond the -- the -- this particular case?'],\n", " ['MS. WEBRE',\n", " 'Yes, Your Honor. And I -- I think that that\\'s where the Federal circuit\\'s jurisdictional -- the Federal circuit\\'s \"arising under\" jurisdiction standard, which the Supreme Court of Texas applied here, that\\'s exactly where it goes awry, is that the court improperly conflates the -- the question of necessity of a Federal issue with the question of whether that issue is substantial. And, in the Grable case, this Court emphasized that those are two separate issues. There are four prongs to the Grable test. The Federal issue embedded in the State claim must be necessary to the State claim; actually disputed; substantial; and then there is a federalism inquiry that exercised a Federal jurisdiction over this State claim can\\'t upend the proper balance between State and Federal authority. The Grable court announced that, and then just a year later, in the Empire HealthChoice case, Your Honor -- Justice Ginsburg, you wrote that opinion for the Court, and that acted sort of as an underscoring of \"and here\\'s how limited the Grable rule really is.\" The Empire HealthChoice opinion distinguishes between Grable, which presented a merely pure question of law, and the claims at issue in Empire HealthChoice which were fact-bound and situation-specific. It distinguished the -- the question of whether a State court is competent to apply Federal law to the extent relevant to the claims and found that, yes, it was. And the -- the Court emphasized that, certainly, the State courts are going to be deciding the occasional Federal issue here and there, but let\\'s not make a Federal case out of each and every State tort claim that might have an embedded Federal issue. Now, in the earlier argument, there was some discussion of the fact that jurisdiction means a lot of different things in a lot of different contexts. But, here, this Court has, on more than one occasion, determined that jurisdiction -- \"arising under\" jurisdiction means the same thing in 1331, the general Federal question jurisdictional grant, and 1338(a), the -- the exclusive provision that\\'s applicable specifically to patents. Now, that has been amended slightly. It -- it, now, includes compulsory counterclaims where they didn\\'t used to be a part, but the jurisdictional grant that Congress gave through the first sentence of 1338(a) uses the same exact phrase, the \"arising under,\" \"any civil action arising under Federal law.\" And, Justice Scalia, you wrote the opinion for the Court in the Holmes Group case and explained that the linguistic consistency between those two means that they mean the same thing. There is nothing unique about this subject matter -- the patent subject matter, that changes the scope of the jurisdictional grant. To be sure, the -- the grant of original jurisdiction to the district courts is exclusive, and that is different from the general Federal question. And to be --'],\n", " ['JUSTICE ALITO',\n", " \"Well, why isn't that significant? Doesn't that manifest Congress's view that -- that -- that this is -- that this is a complicated specialty area? And so there would be, arguably, a special reason for having these cases, cases that involve a patent issue, in Federal court, rather than State court?\"],\n", " ['MS. WEBRE',\n", " 'Yes, Your Honor. But the -- Congress did that in a couple of different ways. First of all, I think it begs the question -- it begs the -- the core question, to say that exclusive -- the fact that jurisdiction is exclusive answers the substantiality because, in order to get to exclusivity of the jurisdiction, you have to get to jurisdiction first. You have to -- it has to be \"arising under\" an act of Congress relating to patents before it can then be exclusive. So -- so we still have the first step. But, also, Congress did not cast the net broader than the general \"arising under\" standard. Even under the -- the statutory framework after the America Invents Act amendment -- under the statutory structure, there are still a number of patent issues -- legal issues that are going to be decided in the State courts that do not come within the exclusive jurisdiction of the Federal courts. For example, compulsory counterclaims, now, come within the exclusive jurisdiction, but permissive counterclaims don\\'t. Permissive counterclaims can certainly present just as substantive a question of patent law, and, yet, those are excluded under the statutory scheme of 1338(a). Patent issues raised as a defensive matter are not sufficient to support \"arising under\" jurisdiction under 1338(a). So, certainly, Congress contemplated a situation where some patent issues are just not going to come within the exclusive jurisdiction of the Federal courts. And I think it\\'s interesting to -- to back up a little bit and look at the Federal circuit\\'s evolved perception of its own exclusive jurisdiction. In the early years of the Federal circuit, in 1984, the first Chief Justice -- the first chief judge of the court, Chief Judge Markey, in the Atari case that is cited at page 21 of the amicus brief filed by the American Intellectual Property Lawyers Association, the Federal circuit wrote, \"Congress was not concerned that an occasional patent law decision of a regional circuit court or of a State court would defeat its goal of increased uniformity in the national law of patents.\" And that was the view of the Federal circuit\\'s own jurisdiction in 1984. But, in the time evolved, the Federal circuit has changed its perception of its own jurisdiction, and that\\'s why we are here today, is, in 2007, the Federal circuit went awry and -- and changed the standard that no longer follows what this Court articulated in Grable. They -- they have improperly conflated the necessity and substantiality components of the -- of an appropriate Grable analysis. And they totally disregard a proper balance of the State and Federal interests. The Federal circuit announced that there\\'s an interest in -- Federal interest in uniformity of patent law, and then that was that. That was the end of the inquiry. There is no balance if you don\\'t look at the State interest on the other side. And, in legal malpractice cases, in general and in Mr. Minton\\'s claim in particular, there are substantial State interests. There is the general interest, the right of a State to develop its own State claims, its own State law, and its own State courts. But there is also a State interest in governing the relationship between attorney and client that happens through the legal malpractice process. But, specifically, with regard to Mr. Minton\\'s claim, one of his primary theories in -- in this case -- in the legal malpractice case, is that the attorney\\'s error, with regard to bringing up the Experimental Use Doctrine, deprived him of the opportunity to make a lucrative settlement with the NASD in the underlying patent litigation. Well, the question of exactly how you prove whether and to what extent the NASD would have paid a settlement and for how much in the underlying case is a matter of tremendous dispute right now. That is an evolving issue in the -- in the legal malpractice jurisprudence of the State of Texas. In fact, in the month of December 2012, the Supreme Court of Texas heard argument in a case called Elizondo v. Krist that addresses that precise issue. How do you prove that NASDAQ would have paid him $100 million, if only these lawyers had raised this issue earlier? And, yet, if this -- if Mr. Minton\\'s claims are hailed into Federal court because of the fact-bound and situation-specific application of the Experimental Law Doctrine, the Federal courts would be Erie guessers as to that important issue that the State courts really need to resolve.'],\n", " ['JUSTICE SCALIA',\n", " 'Ms. Webre, is there any binding effect of a Federal determination here on State law? And is there any binding effect of any State determination here on Federal law?'],\n", " ['MS. WEBRE', 'No, Your Honor.'],\n", " ['JUSTICE SCALIA',\n", " 'If it was left to the State, would what the States say about -- about patent law be binding in any Federal cases? And, vice-versa, if it went to the Federal jurisdiction, would anything that the Federal court says about -- about State tort law be binding on State courts?'],\n", " ['MS. WEBRE',\n", " 'In neither direction would any decision be binding. The -- the State -- any decision in a State court on a legal malpractice matter regarding issues of patent law would not be binding in any way on the Federal courts or on the PTO in handling any of the patent applications -- prosecution of patents.'],\n", " ['JUSTICE SCALIA',\n", " \"Well, that -- that being so, your -- your last argument about the Federal government messing up -- you know, State tort law in an area that -- that is currently very much in the fore in the -- in the decisions of the Texas Supreme Court, that doesn't really carry a lot of weight, except in this single case. I mean, they are not going to mess up Texas law in that regard. They may get this case wrong, but --\"],\n", " ['MS. WEBRE',\n", " \"You -- you are right that -- that it will not, substantially, adversely impact Texas State law, but that's an illustration of a substantial State interest. And, in a way, it's akin to the issue in Grable because the -- the embedded issue in Grable that justified this Court reaching down and grabbing a State law claim and bringing it up into Federal courts wasn't just that the issue was disputed, the -- the construction of that statute was unresolved. But that it needed resolving. It needed resolving by a court whose decision could be precedential, so then it's resolved from then on. And so the -- the question of how do you prove a settlement is an issue that needs resolving by a court who's going to advance the jurisprudence.\"],\n", " ['JUSTICE SCALIA',\n", " \"What about the Federal issue? Doesn't that need resolving?\"],\n", " ['MS. WEBRE',\n", " \"There are no Federal issues that need resolving here because it's solely a question of the application of these specific facts in this affidavit to the doctrine. There's -- there's no overarching question of -- of patent law that needs resolving.\"],\n", " ['JUSTICE KENNEDY',\n", " \"Let me -- me ask this question: Suppose you have two cases, hypothetical, case A, case B, both involve the Experimental Use Doctrine in Federal patent law. In case A, it's a very weak argument; it's most unlikely it's not going to apply. Case B, very strong argument, Experimental Use Doctrine applies. Any difference in the removability in those two cases?\"],\n", " ['MS. WEBRE',\n", " \"I don't believe so, Your Honor, because the question isn't the -- the significance to the particular claim. The question is the Federal issue. Is there a --\"],\n", " ['JUSTICE KENNEDY',\n", " 'Well, if -- if you say -- since you\\'re going to say it -- I mean, if it\\'s a \"substantial\" Federal issue, then it\\'s substantial in hypothetical B, but not in hypothetical A?'],\n", " ['MS. WEBRE',\n", " \"Well, it's -- it's, perhaps, more necessary. But -- and maybe what I need to do is back up a little bit and discuss what I think are the factors for a court to look at, when deciding whether or not an embedded Federal issue is a substantial one. And looking at this -- this Court's articulation in the Grable case and the Empire HealthChoice case, the -- the issues that the Court looked at -- one was the nature of the Federal -- of the Federal question itself -- the Federal issue, is it a constitutional issue?\"],\n", " ['JUSTICE SOTOMAYOR',\n", " 'So does that mean that, if the claim in the malpractice action is that the PTO acted unconstitutionally -- assume that set of facts -- how does that change your analysis?'],\n", " ['MS. WEBRE',\n", " 'That -- that would be a more substantial Federal question than the one presented here, but I submit that it would not be sufficient to warrant \"arising under\" jurisdiction here because it is -- it involves only a hypothetical actual set of patent rights. No judgment that can happen in a State legal malpractice case actually impacts any patent rights. Let\\'s say Mr. Minton won a judgment from a State legal malpractice court saying, it was the negligence, that you would have won the experimental use exception, your patent would have been declared valid. And so he has a judgment from a State court saying, the -- the loss of your patent was the result of the negligence and not because it was actually invalid. That doesn\\'t give him a valid patent. He cannot take that judgment and then sue somebody and say, look, look, I\\'ve got a patent. And it\\'s --'],\n", " ['JUSTICE SOTOMAYOR',\n", " \"So go back to -- you were going through a list of questions, and I posited let's assume that the malpractice claim does involve a constitutional question.\"],\n", " ['MS. WEBRE', 'Yes. So --'],\n", " ['JUSTICE SOTOMAYOR', 'Then what other factors --'],\n", " ['MS. WEBRE',\n", " \"Well, the -- the -- in the continuum constitutional issues would be more substantial; statutory issues would be a little less substantial. In fact, this Court grappled with that in the Grable case and said, we're not going to draw a hard and fast line on statutory issues. But then, in the Empire HealthChoice opinion, the Court noted that this is a -- the issue -- the Federal issue there was nonstatutory, and so, therefore, let's not make a Federal case out of it. So, in that continuum, that would be one factor to look at. Another factor to look at would be, is the Federal issue -- the legal issue undisputed or uncertain? Not necessarily the application of these particular facts to the legal issue because there really isn't a Federal interest in how this affidavit is construed or not. But, in -- in the resolution of the legal issues, as in Grable, is the question of law disputed or uncertain? And the corollary to that is does it need resolving? Because that was the situation in the Grable case. But just because an issue is novel doesn't ipso facto make it a -- a substantial issue. This Court, in the Merrell Dow case, discussed that, that --\"],\n", " ['JUSTICE SCALIA',\n", " 'Why -- why do all -- why do all of these issues cut in your favor, in all cases involving malpractice? I mean, you\\'re urging, not just that your client win here, but you want us to adopt a general rule that malpractice suits involving patent rights can never, ever come under \"Federal arising\" under jurisdiction. Isn\\'t that -- isn\\'t that what you want us to say?'],\n", " ['MS. WEBRE', 'Yes, Your Honor.'],\n", " ['JUSTICE SCALIA',\n", " 'So the burden would be on you to show that every one of these factors, in all of those cases, is always going to cut in your favor. That -- what, that they will never involve a constitutional issue? That they will never, ever determine future patent decisions?'],\n", " ['MS. WEBRE',\n", " \"Well, Your Honor, I -- I urge that because I think that's the only appropriate application of the Grable test to legal malpractice cases. And it's not that --\"],\n", " ['JUSTICE SCALIA',\n", " \"Well, I like -- I like bright-line rules. In fact -- you know, I thought Holmes had it right. It doesn't arise under, unless the cause of action is a Federal cause of action. But once we've gone down -- down the road of Grable, I don't -- you're -- you're proving a negative. The burden is on you to prove a negative, that there is no situation that can arise in -- in malpractice cases involving patents where the Federal issue would justify arising under jurisdiction. That's a hard road to hoe.\"],\n", " ['MS. WEBRE',\n", " \"I think there are two reasons -- there are two reasons why that's the only appropriate way to apply the Grable test to legal malpractice cases, and both of them involve the lack of precedent from the case. One is it can never involve actual patent rights. The consequence of a judge's --\"],\n", " ['JUSTICE SOTOMAYOR',\n", " \"How about fraud on -- a claim of fraud on -- that the malpractice was fraud on the PTO? Lawyer loses that. It's been litigated. Isn't it res judicata, and won't it affect the patent -- or might it not affect the patent in a patent action?\"],\n", " ['MS. WEBRE',\n", " \"No, Your Honor, it would not. It would not affect the patent office, either, as a matter of res judicata or as a matter of issue preclusion -- non-mutual issue preclusion or as a matter of jurisprudential precedent, for a couple of reasons. One is that, as a starting point, the -- the question of attorney misconduct can affect the issuance of a patent before the patent office, but that would happen not in the context of a legal malpractice claim, but in the context of the actual prosecution of the patent before the PTO itself. So the PTO would have made a -- its own determination and granted or not granted limited sanction, whatever action it is the PTO takes in -- before -- in a proceeding before itself, the PTO would be deciding that. So a legal malpractice case would only be subsequent to that. So, in -- in the first instance, the PTO gets to decide that. From a res judicata standpoint, the PTO's patent review manual -- the Manual of Examination of Patents provides that res judicata effect is only given to decisions by either the Board of Patent Review or Interferences, the United States District Court for the District of Columbia, and the Federal circuit. No State courts make that list. So, from a res judicata standpoint, only going right up the chain is going to bind the PTO. And, from an issue preclusion standpoint, the PTO would never be a party -- could never be a party to a -- a legal malpractice claim and, therefore, would not be bound by any State court decision. And what's kind of a funny --\"],\n", " ['JUSTICE SOTOMAYOR',\n", " \"I find that somewhat hard to follow. Let's assume, in adjudicating a medical -- a malpractice claim, the State court finds that the attorney suppressed information. It's a finding of fact. He had this information in his or her file, and they didn't disclose it. I'm not quite sure how the PTO ignores that litigation.\"],\n", " ['MS. WEBRE', 'The PTO may not ignore it. The'],\n", " ['JUSTICE SOTOMAYOR',\n", " \"Or the district court doesn't, if it gets to review that in a later action.\"],\n", " ['MS. WEBRE', 'Well, but --'],\n", " ['JUSTICE SOTOMAYOR',\n", " \"I'm only raising this question to address Justice Scalia's point. You're asking for an absolute rule, and I posited a situation where I think it's not so clear that a State court finding might not have an effect. So do we have to go to your absolute rule?\"],\n", " ['MS. WEBRE',\n", " \"No, Your Honor. You do not have to go to my absolute rule. I think that the absolute rule is the -- the most sensible and appropriate application of the Grable test to State law legal malpractice claims, and it has the added benefit of certainty. It -- it doesn't roll us back to the Justice Holmes' rule.\"],\n", " ['JUSTICE SCALIA',\n", " \"I guess you might argue that, even if it fails the Grable test in a couple of isolated cases, we should still adopt that rule because the benefits of having a -- a clear rule that doesn't have to be litigated in every -- every case outweigh the fact that one or two might -- might not come out that way if we applied Grable.\"],\n", " ['MS. WEBRE', 'Well --'],\n", " ['JUSTICE SCALIA', \"Because we're making it up anyway, right? [laughter]\"],\n", " ['MS. WEBRE',\n", " \"Well, Your Honor, I -- I would take it a step further than that because I think that any actual impact of -- of what you're positing, Justice Sotomayor, is so ephemeral. The idea that -- that the PTO will look at a fact-finding in a legal malpractice case, and, oh, goodness, I didn't realize there was this suppression of evidence, I'm now going to dig further. Well, that's such a speculative and ephemeral possibility, it doesn't disrupt the fabric of patent jurisprudence -- patent law, in any way, and it doesn't tie the hands of the PTO in any way. It doesn't bind the PTO in any future consideration of a continuation patent or any other related continuation-in-part patent.\"],\n", " ['JUSTICE KENNEDY',\n", " 'Let -- let me ask you this: The Brighton Miller treatise is rather complimentary of Grable, it says it brought considerable certainty to the area. I was pleased to hear that because I\\'m not sure that it\\'s true. [laughter] empirical matter, does \"arising under\" a question of is \"arising under\" jurisdiction truly a lenient standard, as the Federal court has articulated? Now, it\\'s true that the -- the entire body of State law legal malpractice cases arising out of patent representation is not going to overwhelm the Federal court. It\\'s not going to -- to -- So my question was even broader. Let\\'s say we resolve legal malpractice. Then -- then we will have products liability with a particular product, and then we will have some food and agriculture cases. It goes on and on.'],\n", " ['MS. WEBRE',\n", " \"Well, I think that is a -- that is a -- that's a substantial issue. But, like Justice Scalia said, that -- you know, the -- this Court departed from Justice Holmes' construct some years ago. But I think that there is the opportunity in this case to provide a great deal of certainty, to provide absolute certainty vis-a-vis legal malpractice cases because of their unique hypothetical aspect. The consequence of the judgment affects no rights. But, second, in reaffirming -- rearticulating the Grable test, emphasizing the importance and the separateness of the substantiality inquiry, emphasizing the importance of the federalism aspect, this Court has a great opportunity to resolve a lot of uncertainty. And, if there are no further questions, I would like to reserve the -- the remainder of my time.\"],\n", " ['CHIEF JUSTICE ROBERTS',\n", " 'Thank you, counsel. Mr. Michel? Is that correct, \"Michel\"?'],\n", " ['MR. MICHEL',\n", " 'It is, Your Honor. Thank you. Mr. Chief Justice, and may it please the Court: This case is about whether a State court has subject matter jurisdiction over a State law patent malpractice claim that rests entirely on an issue of patent law that is only heard in Federal court, and when that issue is dispositive, central to the case, has issues of first impression in them, has no State analogue in any other area of the law, and whether in the deciding issues of questions of law and will not disturb the balance between State and Federal judicial responsibility.'],\n", " ['JUSTICE GINSBURG',\n", " \"What about other areas of exclusive Federal jurisdiction, where the claim, if you are stating it initially, would have to go into Federal court and not State court, say, an antitrust claim, a copyright claim? Is -- is what you're saying about patents, does that go for every area, where initial jurisdiction is exclusively in the Federal court?\"],\n", " ['MR. MICHEL', 'No, Your Honor. It does not.'],\n", " ['JUSTICE GINSBURG',\n", " \"Then what's the difference between, say, antitrust and patent?\"],\n", " ['MR. MICHEL',\n", " 'There -- there are many differences, Your Honor. First, antitrust has -- has a State analogue. The Texas Supreme Court in Coca-Cola v. Harmer, 218 Southwest --'],\n", " ['JUSTICE SOTOMAYOR', 'Then take immigration law.'],\n", " ['MR. MICHEL', 'Yes.'],\n", " ['JUSTICE SOTOMAYOR', \"Don't get in the weeds. Take immigration law.\"],\n", " ['MR. MICHEL',\n", " 'Yes. Now, once again, the issues -- immigration law may be a -- a differing area where there is exclusive Federal court jurisdiction in that area, possibly. But, once again, the analysis and the application in immigration law, from a malpractice case, may give rise in that area. However --'],\n", " ['JUSTICE SCALIA',\n", " 'Excuse me. I guess I just don\\'t understand this. Is it the case that there is \"arising under\" jurisdiction only when the Federal cause of action presented is one over which Federal courts have exclusive jurisdiction?'],\n", " ['MR. MICHEL', 'That --'],\n", " ['JUSTICE SCALIA', 'Is that -- is that the rule?'],\n", " ['MR. MICHEL', 'I believe, in part.'],\n", " ['JUSTICE SCALIA',\n", " 'I mean, any -- any Federal statute that can be sued upon, both in Federal courts and in State courts, but as to which Federal courts are the dispositive adjudicators, you say that that does not come within this \"arising under\" rule?'],\n", " ['MR. MICHEL',\n", " \"Does -- does not come within this Court's doctrinal holdings in Grable and Empire because we have a Federal balancing and State balancing issue. And, as we've articulated, when Congress has articulated --\"],\n", " ['JUSTICE SCALIA',\n", " 'Do you have a case for that, that says, if a suit could be brought in State court, even though it involves a dispositive Federal question as to which this Court would be the -- you know, the last interpreter, it cannot possibly come within \"arising under\" jurisdiction? Have you got a case for that.'],\n", " ['MR. MICHEL',\n", " \"I'm sorry, Your Honor. I don't know if I followed your question.\"],\n", " ['JUSTICE SCALIA',\n", " 'Do you have a case which says that, when a Federal question is presented in a case over which Federal courts have jurisdiction, but also State courts have jurisdiction, although, needless to say, the Federal courts would be dispositive on the issue, such a case cannot come within the \"arising under\" jurisdiction?'],\n", " ['MR. MICHEL',\n", " \"No, I don't think anything that expressly. But the A&T and the --\"],\n", " ['JUSTICE SCALIA',\n", " 'I would find it extraordinary for -- for that to be the rule.'],\n", " ['MR. MICHEL',\n", " \"Well, you can't isolate it. That rule is more complicated because it is the application of the Grable standard that's the analysis.\"],\n", " ['JUSTICE KENNEDY',\n", " \"But getting back -- Justice Ginsburg simply made the point, I had thought, that you place a good deal of reliance on the fact that there is exclusive jurisdiction. And her question to me pointed out how far-reaching this case might be because it -- it could involve patents, copyright, all other areas of exclusive jurisdiction. If that is going to be your special rule, it's not so confined as you suggest. That's all that question meant to me. Certainly -- certainly, you -- you could have cases where there is concurrent jurisdiction, 1983, in which we'd have the same problem.\"],\n", " ['MR. MICHEL',\n", " 'I think -- I think the factors that go into determining the -- one of the grounds that has been articulated by Grable and the balancing for Merrell Dow is the number of cases that would come into Federal court, and it is a doctrinal decision. It is a doctrinal rule.'],\n", " ['JUSTICE SOTOMAYOR',\n", " 'So patent law cases of malpractice are smaller in number than copyright cases --'],\n", " ['MR. MICHEL',\n", " \"Patent law cases -- JUSTICE SOTOMAYOR -- immigration, other exclusive jurisdictions, so that's okay to -- to remove, but those others aren't? Those --\"],\n", " ['JUSTICE SOTOMAYOR', 'Does that make a whole lot of sense?'],\n", " ['MR. MICHEL', 'That is the articulation in Grable, Your Honor.'],\n", " ['JUSTICE SOTOMAYOR',\n", " \"Well, how about a different one, the one that's being proposed by your adversary --\"],\n", " ['MR. MICHEL', 'That --'],\n", " ['JUSTICE SOTOMAYOR',\n", " '-- which is define \"substantial\" as to how it affects Federal law, which I think was the bottom line -- or the development of Federal law, the bottom line of Grable. And she says -- you dispute this in your brief -- that it doesn\\'t affect the invalidated patent, that there\\'s no way that a judgment on the malpractice is going to be used in a continuation patent dispute because it\\'s not one of the listed preclusive courts. So how does a ruling affect patent law?'],\n", " ['MR. MICHEL',\n", " 'Sure. Many -- many ways, Your Honor. First, the test is uniformity, under Grable, the uniformity of patent law -- Federal law, not whether the --'],\n", " ['JUSTICE SOTOMAYOR', \"Why is -- who's going to follow it?\"],\n", " ['MR. MICHEL',\n", " 'In many situations. For example, she -- she conflates -- Petitioners conflate, res judicata with issue preclusion. That goes back to your earlier question, Justice Sotomayor, and that issue preclusion will have an effect. And as, in fact --'],\n", " ['JUSTICE GINSBURG',\n", " 'Issue preclusion applies only to someone who was a party.'],\n", " ['MR. MICHEL',\n", " \"Correct. That would only apply to the inventor; it would not apply to the PTO. It can only be used against, in this, case Mr. Minton. And, in fact, patent counsel in this case, under the rules of the Federal circuit, under patent law and the Patent Manual, disclosed the State court's rulings in this case to the Patent Office during its continuing patent. The State district court judge made a scope and claim decision. So, Justice Sotomayor, back to your question --\"],\n", " ['JUSTICE GINSBURG',\n", " 'But that, certainly, is not binding. The -- whatever the State -- whatever the State court says, as a matter of patent law, has no binding effect on that question coming into Federal court.'],\n", " ['MR. MICHEL', 'It does.'],\n", " ['JUSTICE GINSBURG', 'How?'],\n", " ['MR. MICHEL',\n", " \"Under this Court's decision Marrese v. The Academy of Orthopedic Assertions -- Surgeons, a State court's decision is entitled to issue preclusion, even in Federal forum. And so that is why -- also the patent -- the continuation patent would -- could be declared invalid for failing to disclose that information. We are not saying it's binding on the PTO, but it is an issue of issue preclusion as against Minton that would be in front of the PTO and is in front of the PTO, as we speak.\"],\n", " ['JUSTICE SCALIA',\n", " 'I mean, is that -- my goodness, but you are going to have a purely hypothetical State decision here. The State will have held that -- you know, if -- if he had said this, the result would have been something else. And you think that that precludes the -- the issue when it arises in real life? And you say, since the State court made that hypothetical determination, it precludes me from arguing it in -- in real life.'],\n", " ['MR. MICHEL', 'Yes. It is a factor --'],\n", " ['JUSTICE SCALIA',\n", " \"Do you have any cases like that? It seems, to me, a rather weird -- weird situation. I mean, maybe it could, but it -- it's strange.\"],\n", " ['MR. MICHEL',\n", " 'Well, it is a matter of issue preclusion. This Court -- that is the danger of allowing these patent law issues to proceed in State court. This Court -- the State district court in this case entered in a brand-new issue of Federal - Petitioners and Respondents totally disagree as to whether this is a fact-specific case or whether this case involves issues of law. And, in fact, we contend it involves issues of first impression. In this case, the State district court made holdings about issues of whether the question of -- the experimental use exception is a question of law or a question of fact. It made the requirement that experimental use had to go to a required claim element, as opposed to a claimed element. It made the determination -- and the Court of Appeals made the legal determination that knowledge of the buyer is conclusive, rather than as a factor. Those are all issues of not only disputed substantial issues of Federal patent law that both parties submitted briefings in the trial court and the court of appeals, 70 pages long, disputing the legal --'],\n", " ['JUSTICE SOTOMAYOR', 'Besides the parties --'],\n", " ['MR. MICHEL', 'Yes.'],\n", " ['JUSTICE SOTOMAYOR',\n", " '-- how else does it affect the development of patent law?'],\n", " ['MR. MICHEL', 'The --'],\n", " ['JUSTICE SOTOMAYOR', 'Who else is going to follow --'],\n", " ['MR. MICHEL', \"They're --\"],\n", " ['JUSTICE SOTOMAYOR', '-- this malpractice determination?'],\n", " ['MR. MICHEL',\n", " \"It's going to have a really profound effect on the patent law practitioners who are uniquely situated and work in parcel -- and interlocking with the Patent Law Office. It is the patent lawyers who draft the patents, it is the patent lawyers who present them to the Patent Office, they are the ones who engage when they need to be amended or refined or narrowed or broadened.\"],\n", " ['JUSTICE SCALIA',\n", " 'They knew -- they knew these were controverted issues. You say that they -- they are controverted issues. So they would have been alerted to a problem anyway. And they certainly would not accept a State court determination as authoritative resolution of that problem.'],\n", " ['MR. MICHEL', 'The patent --'],\n", " ['JUSTICE SCALIA', 'The patent attorneys. I mean, you --'],\n", " ['MR. MICHEL',\n", " \"No, the Patent Office will have to take that as guidance because their new taskmaster will not be -- be following Federal patent law because, in this case, the Court injected a brand-new requirement that was never held by a patent lawyer, that you had to have an expert witness testify to establish your experimental use testing exception. That's never been held anywhere in Federal patent law. So, now, who's the patent lawyer going to be looking to for guidance? The exclusive Federal courts? The Patent Office? Guidance from the Federal circuits? No, they are going to have their backs watched by the State courts, saying, uh-huh, you know what? I'm going to impose a new legal obligation on you, and you are going to be held for malpractice. And that's not -- that's not --\"],\n", " ['JUSTICE GINSBURG',\n", " \"What would happen -- what would happen if that came up in an ordinary litigation in Federal court, and the Federal circuit, ultimately, decided the question, that the State court was entirely wrong about this; you don't need a witness. Well, that's the end of it, right? Once the Federal court decides the question, then whatever the -- the State judge thought was the Federal law is -- is gone.\"],\n", " ['MR. MICHEL',\n", " \"No, that's exactly the problem. The State courts aren't bound by the Federal circuit's holding. There will be no Federal review of substantial issues of Federal law -- zero -- unless this Court is going to --\"],\n", " ['JUSTICE SCALIA',\n", " \"Excuse me. The State courts are not bound by the Federal court's holding? You mean State courts can resolve patent questions, contrary to what the Supreme Court of the United States says the law is?\"],\n", " ['MR. MICHEL',\n", " \"No, not contrary -- that was the point I was going to make -- not contrary to the holdings of the United States Supreme Court, contrary to the Federal circuit's holding. And, in fact, the Fort Worth Court of Appeals did not follow the Federal circuit's holding in this area.\"],\n", " ['JUSTICE KAGAN',\n", " \"Well, are you saying, Mr. Michel, that what -- what the State courts are going to do is to say that, notwithstanding that the Federal circuit has ruled on a matter and notwithstanding that the lawyer has complied with the rule as articulated by the Federal circuit, that, nonetheless, they will be held to have committed malpractice because they didn't comply with the State's rule? Is -- is that what you think the State judges are really going to do?\"],\n", " ['MR. MICHEL',\n", " 'I think the State judges are going to try to, possibly, apply Federal circuit holding. In this case, they did not. They injected a new holding, which established a new liability for the patent lawyers, which is not reviewable, unless this Court were to grant certiorari review. And so that then leaves the only review on these materials -- these are going to be substantial issues of --'],\n", " ['JUSTICE SOTOMAYOR',\n", " \"So what you're arguing, they're going to make a mistake, and, because we might not accept certiorari, that's binding on everybody else --\"],\n", " ['MR. MICHEL', \"It's --\"],\n", " ['JUSTICE SOTOMAYOR', '-- in the State --'],\n", " ['MR. MICHEL',\n", " \"No. It's binding on the State court practitioners, in that State, who get sued for legal malpractice. And it's that interrelationship between the lawyers who are drafting patents -- they are going to be getting --\"],\n", " ['JUSTICE KAGAN',\n", " 'What if a lawyer says to the -- you know, I complied with all the Federal law -- all the rules from the Federal circuit, I complied with.'],\n", " ['MR. MICHEL', 'Yes.'],\n", " ['JUSTICE KAGAN',\n", " \"You are suggesting that the State court is going to say, too bad, you committed malpractice anyway because you didn't comply with our hypothetical law about patents?\"],\n", " ['MR. MICHEL', 'They did that in this case. At 214 --'],\n", " ['CHIEF JUSTICE ROBERTS',\n", " \"It's not -- it's not -- I guess it's not their hypothetical law. They would be saying, this is what we think the Federal law requires, and while we're happy -- or not happy -- but it's interesting that the Federal circuit thinks something else, but that doesn't bind us.\"],\n", " ['MR. MICHEL',\n", " \"Correct. Correct. And it's not just hypothetical. The hypothetical doesn't mean insubstantial. The hypothetical doesn't mean --\"],\n", " ['JUSTICE SCALIA',\n", " \"Why is that worse than the fact that, if it goes to Federal court, all of the lawyers in the State, in all malpractice cases, are going to be, supposedly, bound by the Federal court's holding as to State issues of malpractice? I mean, it seems to me it's Twiddle Dum or Twiddle Dee, whichever court system you go to, you are going to terrorize the lawyers of that State on the basis of an opinion of a court that is not dispositive on those issues. So I don't -- I don't know why --\"],\n", " ['MR. MICHEL',\n", " \"I think we disagree. Here, when you try -- for example, in the patent infringement case, the sole trial is going to be the patent infringement. You are going to try the Federal lawsuit, Your Honor -- Justice Scalia, you are trying that patent infringement lawsuit in State court, in the -- in the case within the case analysis. The Federal rules, that's what is so troubling about --\"],\n", " ['JUSTICE SCALIA',\n", " 'And you -- you are trying the malpractice lawsuit -- the State malpractice lawsuit, in Federal court.'],\n", " ['MR. MICHEL',\n", " \"Correct. But the application and the rules governing it are going to be by Federal law. The rules in this case -- in particular, the substantial issue of the experimental use exception, the only issue we've saved was the -- the experimental use exception. We disagree that just because the State court makes an opinion and a holding, it doesn't have real-world effects. It really does. It's not an advisory opinion. And there needs to be a distinguishment between the side issue the Petitioners are saying -- they are trying to get you focus on this one micro-issue of whether it will affect an actual patent -- as to whether it will affect patent law. And it will affect patent law, and it will affect the application of patent law. And so what you're going to have is you're going to have two diverging systems. You're going to have -- actually, you will have one on the Federal side, and then you will have 50 jurisdictions espousing what they think the law is of patent law and not being bound by the Federal circuit, which is going to --\"],\n", " ['JUSTICE GINSBURG',\n", " 'Anytime -- anytime -- I mean, a lot of patent questions -- as you already pointed out, a lot of patent questions come up in State court litigations, contract litigations, every time you have a patent question, then must the case go to the Federal court, in your view?'],\n", " ['MR. MICHEL', 'No, that is not our position.'],\n", " ['JUSTICE GINSBURG',\n", " 'So what is the dividing line between patent questions that belong in State court and patent questions that belong only in Federal court?'],\n", " ['MR. MICHEL',\n", " \"For example, not every malpractice case -- it will be the case within the case doctrine in a patent case that will go to Federal court. For example, failure to communicate a settlement offer does not have a case within the case. In a business transaction, it doesn't have the case within the case analysis. So those malpractices arising from them will not go to Federal court. Breaches of fiduciary duty for divestiture of fees don't have the causation element. So we are --\"],\n", " ['JUSTICE SCALIA',\n", " \"So you are talking about a case that has a patent issue, whether it's a contract case, a tort case, a malpractice case -- if it has a patent issue, you think it has to go to Federal court?\"],\n", " ['MR. MICHEL', 'We do not.'],\n", " ['JUSTICE SCALIA',\n", " \"Well, then I repeat Justice Ginsburg's question, how do you decide which of those do and which of those don't?\"],\n", " ['MR. MICHEL',\n", " 'I think this is a case in point. This case is on all fours with Grable. There is no exception. The only distinguishing factor is this hypothetical argument of the case within the case analysis.'],\n", " ['JUSTICE GINSBURG',\n", " \"Well, why don't you stay within the lines that you give us? You have said not every patent question that comes up in a State court gets dismissed, just so you can start over in Federal court, what patent questions -- now, let's not talk about breach of fiduciary duty general questions -- what patent questions are properly adjudicated in the State court as part of a lawsuit that --\"],\n", " ['MR. MICHEL',\n", " 'Well, the -- the distinction is, for example, in a licensing case, in a patent case, where you -- those cases are brought in Federal - I mean -- I\\'m sorry -- brought in State court -- our -- our request here is following Grable, that what will go to Federal court are legal malpractice cases arising from substantial issues of Federal patent law that have that case within the case analysis. And it\\'s that narrow -- extremely narrow window of cases. This is not, \"Katie, bar the door.\" We - we\\'ve set forth the empirical numbers. They are going to be microscopic. But what they do have is Grable\\'s test. Every element that Grable articulated, this case meets. It does involve substantial issues of first impression.'],\n", " ['JUSTICE GINSBURG',\n", " 'But what was the substantial Federal matter in Grable?'],\n", " ['MR. MICHEL',\n", " 'The issue of the IRS, whether personal service had to be given under an IRS --'],\n", " ['JUSTICE GINSBURG',\n", " 'Yes. And that was going to control, the actions of the Federal agency, of IRS.'],\n", " ['MR. MICHEL', 'Correct.'],\n", " ['JUSTICE GINSBURG', 'And you have no counterpart for that here?'],\n", " ['MR. MICHEL',\n", " 'We do have rules that will govern the law on experimental use exception. JUSTICE'],\n", " ['GINSBURG', 'You have -- you have --'],\n", " ['MR. MICHEL',\n", " \"And that would govern the application in Federal court. That's why it should be in Federal court, to govern how the agency -- and whether a patent -- and this suit goes directly -- it affects patents. This is going to patent validity.\"],\n", " ['JUSTICE GINSBURG',\n", " \"But the -- but the Federal court -- you said before that whatever the Federal circuit says, the State doesn't have to follow it the next time there's a case in State court, but the Federal court is certainly not going to follow what the State judge says on experimental use.\"],\n", " ['MR. MICHEL',\n", " \"It does. I will tell you -- the reason why it does, it's in the doctrine of collateral estoppel. It affects the inventor. It's affecting the inventor in this case. This holding of the State district court and the State court of appeals are now before the Patent Office --\"],\n", " ['JUSTICE SOTOMAYOR', \"I'm sorry. How does it -- the patent's invalid.\"],\n", " ['MR. MICHEL', \"I'm sorry?\"],\n", " ['JUSTICE SOTOMAYOR',\n", " \"The patent's invalid. Nothing the Court does here is going to change that invalidity. That -- that's what I don't understand.\"],\n", " ['MR. MICHEL', 'Correct.'],\n", " ['JUSTICE SOTOMAYOR',\n", " \"He's not going to get his patent back from this action.\"],\n", " ['MR. MICHEL', \"That's correct.\"],\n", " ['JUSTICE SOTOMAYOR', \"He's going to get money for losing it, maybe.\"],\n", " ['MR. MICHEL', 'Correct.'],\n", " ['JUSTICE SOTOMAYOR', 'So how does it affect the patent?'],\n", " ['MR. MICHEL', 'There is a pending continuation patent. And --'],\n", " ['JUSTICE SOTOMAYOR', \"We're back to that issue. Okay.\"],\n", " ['MR. MICHEL',\n", " \"Yes, but that is a collateral estoppel issue. Here, let me -- let me give up another scenario because, in a different role, when the patent is not declared invalid and, instead, there is a finding of non-infringement, and that's what gives rise to the legal malpractice case. Then you go to State court, and, in that situation, the determination of -- of infringement will be raised as a basis for legal malpractice against the lawyer in the malpractice action. Then the lawyers raise, as within the case within the case exception, is that, oh, the patent was invalid. So, then, in that situation, a State district court will be rendering an opinion on a live patent, and then that will be binding on the inventor and will affect real live actual patents, and it does affect patents before the Patent Office. Petitioner said we -- it's not an issue of res judicata. They cite a rule. That's not our argument. It's an issue of issue preclusion. It's also the duty and the obligation of the lawyer to disclose that judicial discussion -- discussion to the Patent Office. Otherwise his, continuation patent could be declared invalid for inequitable conduct -- for not disclosing material information.\"],\n", " ['JUSTICE GINSBURG',\n", " 'And your -- your distinction between other areas of Federal jurisdiction where the Federal law controls and patent is what? What -- Justice Sotomayor brought up immigration law --'],\n", " ['MR. MICHEL', 'Yes.'],\n", " ['JUSTICE GINSBURG',\n", " \"-- copyright law. Why don't they -- why doesn't what you said work the same way in those fields?\"],\n", " ['MR. MICHEL',\n", " \"I think there are -- there are distinctions in the area of patent law versus any other area of the law namely because, as we get to the State -- and this -- this goes to the analysis of the State/Federal balance. That's why the exclusive Federal court jurisdiction. That's why exclusive nationwide jurisdiction in patent law in the Federal circuit is different than any other area of the law. It is that balancing test that we are required to engage in. That's why it's unique from antitrust, trademark, civil rights, securities, employment. Those have concurrent jurisdiction. They may not have an agency involved. For example, bankruptcy initially sounds like it's exclusively Federal court issues, but, when you look underneath the bankruptcy, there is core proceedings, and there's non-core. Non-core are concurrent. Those can be heard in State court. Secondly, those underlying issues in bankruptcy, typically, involve State property right issues anyway. So they are really applying whether somebody has a perfected security interest lien, whether somebody has a justified debt, whether -- things of that nature. So rather than in any other area of law, these other areas, even if they are exclusive in Federal court jurisdiction, some of those underlying issues are basically based on who the party is. And they are still applying underlying State issues.\"],\n", " ['JUSTICE GINSBURG',\n", " 'So your case turns on the -- the Federal circuit having exclusive appellate jurisdiction?'],\n", " ['MR. MICHEL',\n", " 'That is one of the most defining factors on the State/Federal balance of judicial responsibility. Our understanding of that analysis of the federalism and, also, the articulation of -- just as we have showed up -- Petitioners said a whole ton of cases were going to come in. We supported statistics that the numbers will be very small. But the distinguishing factor because of the balancing test that we are required to --'],\n", " ['JUSTICE GINSBURG',\n", " \"But, if there's a large Federal interest, I mean, that's what you're saying that there is in the Federal/State balance -- the Federal balance -- it's preponderant on the Federal side. If there is that large Federal interest, is it surprising that the government hasn't come into this case, if there's such a Federal interest to be protected?\"],\n", " ['MR. MICHEL',\n", " \"No, I think the Federal government -- I can't -- I can't speculate to -- for that, Justice Ginsburg. There could be just many reasons why they didn't come in on this case, just like they don't come in on many other cases. But the Federal interest here, in the national uniformity, I think, has been well stated, both by this Court and the Federal circuit.\"],\n", " ['JUSTICE GINSBURG',\n", " 'There\\'s a difference between you and your colleague on what \"substantial\" means.'],\n", " ['MR. MICHEL', 'Yes.'],\n", " ['JUSTICE GINSBURG',\n", " \"And she says it doesn't just mean necessary -- essential in this particular litigation, but, as in the Grable case and the Kansas City Title & Trust, has larger ramifications for many other cases, not just this case and whether there's going to be issue preclusion as to this particular inventor. Those -- I don't see an issue in this case comparable to those.\"],\n", " ['MR. MICHEL',\n", " 'I think there are -- there are a number of issues of -- of greater importance than just this case. The question is the ongoing conflict in Federal patent law on whether the experimental use exception is a question of law or a question of fact. The Federal circuit has gone both ways on that, whether the issue of buyer knowledge is a conclusive factor or whether it is just one of 13 factors.'],\n", " ['JUSTICE GINSBURG',\n", " \"Whether they -- those questions will come to the Federal circuit, and they'll decide it, and then they'll be settled.\"],\n", " ['MR. MICHEL',\n", " \"Well, we would hope they would be settled, but, then, we're going to have this whole other body of law out there in State courts that aren't bound by the Federal court to answer those questions. And those will govern the practice of patent -- patent lawyers.\"],\n", " ['JUSTICE GINSBURG',\n", " 'How likely is that, in practice, that once the Federal circuit weighs in, that the State judges will go their own way?'],\n", " ['MR. MICHEL', \"I think it's a very real possibility. We've had --\"],\n", " ['JUSTICE SCALIA',\n", " 'Well, my -- my experience is that Federal judges, including this Federal judge, are not interested in -- in getting into the weeds of patent law, and, if -- if they could rely on a decision of the Federal circuit, they would do that just as fast as they can.'],\n", " ['MR. MICHEL',\n", " \"You -- you would -- you would think so. It doesn't appear to be the case because, in this case, we had holdings that -- that experimental testing had to be on a required claim element. There is also an issue in this case of whether you had to have an expert witness testify to prove up the experimental use exception, nowhere held in Federal law. The problem is these judges often will have never handled a patent law in their career. This will go to some judges who have been in family law, got elected at the district court, and will never have decided or looked at a patent law case. We're requesting --\"],\n", " ['JUSTICE GINSBURG',\n", " 'Would that be the same thing for antitrust, be the same for copyright?'],\n", " ['MR. MICHEL',\n", " \"But the articulation isn't the same. There are other -- in antitrust, there are State analogs. The -- the judges are familiar with applying it. In fact, the State of Texas, in Coca-Cola v. Harmar, stated that there's a high interest in its own State interest -- I mean, antitrust laws. The same with trademark, trademark is concurrent jurisdiction. The limited area that applies these factors, going back to the balancing test, is extremely narrow. Patent law is unique in that area of almost any other area of law. We think the Texas Supreme Court got this decision right, and we request that the Court follow Grable and apply Grable to the case at hand. Thank you.\"],\n", " ['CHIEF JUSTICE ROBERTS',\n", " 'Thank you, counsel. Ms. Webre, you have four minutes remaining.'],\n", " ['JUSTICE SCALIA',\n", " \"Ms. Webre, can I ask you about the question presented? The way you presented it to us, it -- it was as though we're -- we're reviewing whether the Federal circuit was right to reject Grable in -- in whatever the names of those opinions are. But. In fact, that's not the situation at all. The Texas Supreme Court here applied Grable, and I think just the way you would want it applied. So your -- your contention is simply they didn't apply it correctly; isn't that right?\"],\n", " ['MS. WEBRE',\n", " 'I disagree, Your Honor. The Texas Supreme Court didn\\'t properly apply Grable. What they applied was the Federal circuit\\'s improper departure from Grable, in two ways. One is they conflated necessity with substantiality, and that comes -- in the Federal circuit\\'s jurisprudence, that comes from a sound bite from the earlier Christiansen case, where the -- the line goes something like, \"There is a substantial Federal issue because it is necessary to the parties\\' claim.\" And so it conflates necessity with substantiality, and the -- the Texas Supreme Court followed the Federal circuit\\'s construct. They said, we\\'re applying Grable, we\\'re looking at substantiality, but then they did exactly what the Federal circuit did. And ditto with -- with the Federalism balance. They pointed to the needs of the Federal interest in the uniformity of patent law, and that was the end of the inquiry. And I think that that is a measure of the deference that the Supreme Court of Texas -- as other State courts would do, the deference they grant to the Federal circuit in deciding the question of appropriate scope of patent jurisprudence and the relative importance of the -- the uniformity of patent law. And so we arrive to you from the Supreme Court of Texas, but truly presenting the -- the appropriateness of the Federal circuit\\'s redone application of the Grable test.'],\n", " ['JUSTICE SOTOMAYOR',\n", " \"Could you answer the one point your adversary raised that -- that gives me pause -- a lot of pause. He says a ruling on patent law of how you should or should not behave in a State malpractice claim will affect all of the lawyers who practice in - in your State because each of them will have to do or not do whatever that malpractice ruling was because that's what the State is going to -- State courts will follow in the future. So it will change those lawyers' behaviors in Federal court.\"],\n", " ['MS. WEBRE',\n", " 'Your Honor, I think that that is such a speculative road to go down. What is it the lawyers are going to do different? A lawyer --'],\n", " ['JUSTICE SOTOMAYOR',\n", " \"They are going to present an expert all of the time when they don't need to.\"],\n", " ['MS. WEBRE',\n", " 'They are -- they are going to do some extra work and make an extra belt along with the suspenders that they are required to do. And where is the harm in that? And where is the undermining of -- of the uniformity of patent law if a lawyer in a-- in a real patent case in Federal court --'],\n", " ['JUSTICE SOTOMAYOR',\n", " \"But you can think of an example where -- not perhaps on the facts of this case, but where a State court's ruling could, in fact, establish a -- a code of behavior that's not just belts and suspenders, that's something else.\"],\n", " ['MS. WEBRE',\n", " \"Your Honor, I think that - that spinning out a hypothetical on that would be truly speculative. It's hard to imagine a situation where it would be contrary or intentioned with what -- what the Federal courts would hold, particularly since it's -- I agree with Justice Scalia's construct, that the State courts are going to try to apply appropriate Federal law --\"],\n", " ['CHIEF JUSTICE ROBERTS',\n", " \"What about just the -- just the flip side of this case? Let's suppose they said, the one -- no, you don't need an expert. So it's not belt and suspenders; it's neither belt nor suspenders. That's going to affect the conduct of the lawyers in the State in the way that would be disruptive of -- of the uniformity of Federal patent law.\"],\n", " ['MS. WEBRE',\n", " \"If an expert is required under Federal jurisprudence, then an expert is required in a real patent case. And if the State court makes the mistake in -- in an occasional case here or there, then a lawyer practicing in a real patent case -- in a real case in Federal court, needs to make sure that they are complying with the requirements. And -- and if you're going to -\"],\n", " ['CHIEF JUSTICE ROBERTS',\n", " \"Well, right, the requirements of the Federal law. The question is there's going to be a different interpretation of what that means in the State court and in the Federal circuit.\"],\n", " ['MS. WEBRE',\n", " \"Well, Your Honor, if there is a conflict, then what you're supposed to follow is the jurisprudence of the courts who -- before whom you are practicing. If -- if the Federal circuit or Federal district court has something about patent law, then that's what the lawyers should follow in prosecuting a patent case. And a lawyer who decides, I'm going to disregard the Federal circuit standards on fact question, expert required, whatever it is, and, instead, follow the Fort Worth court of appeals on this issue, I submit that -- that the lawyer does so at his peril, and that doesn't undermine the appropriate uniformity of patent law.\"],\n", " ['CHIEF JUSTICE ROBERTS', 'Thank you, counsel. The case is submitted.']]" ] }, "execution_count": 33, "metadata": {}, "output_type": "execute_result" } ], "source": [ "section_data[\"11-1118\"]" ] }, { "cell_type": "code", "execution_count": null, "id": "ae5431e6", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "code", "execution_count": null, "id": "bd577132", "metadata": {}, "outputs": [], "source": [] }, { "cell_type": "code", "execution_count": null, "id": "a8290d08", "metadata": {}, "outputs": [], "source": [] } ], "metadata": { "kernelspec": { "display_name": "Python 3 (ipykernel)", "language": "python", "name": "python3" }, "language_info": { "codemirror_mode": { "name": "ipython", "version": 3 }, "file_extension": ".py", "mimetype": "text/x-python", "name": "python", "nbconvert_exporter": "python", "pygments_lexer": "ipython3", "version": "3.8.10" } }, "nbformat": 4, "nbformat_minor": 5 }