The Perils of Relying on the Wrong Clause—Grounding the Ministerial Exception at the Supreme Court

IRA C. LUPU, ROBERT TUTTLE

GW Law professors Ira C. Lupu and Robert W. Tuttle explain why the path the U.S. Supreme Court is taking in ministerial exception cases—relying on the Free Exercise Clause of the First Amendment—is dangerously misguided. Lupu and Tuttle argue that the ministerial exception rests primarily on the Establishment Clause and is strictly limited to employment decisions about who leads or controls a faith community, or who transmits a faith.

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United States of America v. Sanofi Aventis U.S. LLC, et al.

Docket: 256, 2019

Opinion Date: March 17, 2020

Judge: Karen L. Valihura

Areas of Law: Business Law, Corporate Compliance

The Third Circuit Court of Appeals certified a series of questions of law to the Delaware Supreme Court. The Questions arose in connection with the prosecution of a qui tam action under the False Claims Act (“FCA”), In re: Plavix Marketing, Sales Practices and Products Liability Litigation (No. II), brought against Sanofi-Aventis U.S. LLC, Sanofi-Aventis U.S. Services, Inc., Aventis, Inc., Aventis Pharmaceuticals, Inc., Bristol-Myers Squibb Company, and Bristol-Myers Squibb Pharmaceuticals Holding Partnership (together, “Defendants”). The relator bringing the action, on behalf of the United States and several states, is JKJ Partnership 2011 LLP, a Delaware limited liability partnership. The partnership consisted of three individuals who allegedly were each an “original source” of knowledge upon which the allegations against Defendants were based. The Questions arose when one of the partners was replaced by another partner, and an amended complaint was filed shortly thereafter. Upon the filing of the amended complaint, the Defendants moved to dismiss, alleging, in-part, that replacing the partner was impermissible the under the FCA’s “first-to-file” bar. The United States District Court for the District of New Jersey (the “District Court”) granted the motion on that ground. The partnership appealed to the Third Circuit, which, in turn, certified the Questions that related to the “construction or application of” a Delaware statute “which has not been, but needed to be settled by the Delaware Supreme Court.