Search

The U.S. Supreme Court has declined to review the constitutionality of the 2020 Horseracing Integrity and Safety Act (HISA), which created the Horseracing Integrity and Safety Authority (HISA) to regulate medication control and racetrack safety in thoroughbred horseracing. The Act has faced challenges in the Sixth Circuit, with parties filing a petition for a writ of certiorari. Although the Supreme Court initially denied certiorari, a petition for rehearing has been filed based on a ruling by the Fifth Circuit that found the Act to be unconstitutional due to its delegation of enforcement power to private actors. The Supreme Court is currently considering the petition for rehearing. [Extracted from the article]

The U.S. Court of Appeals for the Fifth Circuit has vacated the private fund adviser rules adopted by the U.S. Securities and Exchange Commission (SEC) in August 2023. The court ruled that the SEC exceeded its authority in adopting these rules, as they were unauthorized and had untenable legal bases. The rules, which were set to have a compliance date in September 2024, included restrictions on activities, quarterly statements, preferential treatment, private fund audits, adviser-led secondaries, and recordkeeping. It is uncertain whether the SEC will appeal the ruling, but for now, private fund advisers are unlikely to need to follow these rules. However, the SEC may still raise similar requirements in future examinations, and investors may seek certain terms that would have been granted under the disputed rules. [Extracted from the article]

This case will be the fourth time the Supreme Court has addressed the right to confrontation when dealing with expert testimony about forensic testing and analysis. The last time, in Williams v. Illinois, 567 U.S. 50 (2012), a 4–1–4 plurality opinion caused uncertainty in the lower federal and state courts. Much of the uncertainty is over a neverending question for hearsay and Confrontation Clause analysis—what is “testimonial” hearsay under the Confrontation Clause, one issue this case may address in the context of testimony about forensic analysis. The Court accepted certiorari on one question, which may present several subsidiary issues: whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements. [ABSTRACT FROM AUTHOR]

The article discusses the intersection of thoroughbred racing's Triple Crown events with a briefing to the U.S. Supreme Court on the constitutionality of the Horseracing Integrity and Safety Act (HISA). The HISA, passed in 2020, created the Horseracing Integrity and Safety Authority (HISA) to regulate medication control and racetrack safety in the thoroughbred racing industry. However, lawsuits have been filed challenging the constitutionality of the Act, with the Fifth Circuit ruling it unconstitutional and the Sixth Circuit ruling it constitutional. The Oklahoma Horse Racing Commission has petitioned the Supreme Court to review the case. [Extracted from the article]

The Supreme Court recently ruled unanimously that when a district court compels claims to arbitration, it is required to stay the case rather than dismiss it outright. This decision is important for parties seeking to compel arbitration, as they often seek dismissal of the case. The case in question, Smith v. Spizzirri, involved claims of violations of employment laws. The district court initially dismissed the case, but the Supreme Court reversed this decision, stating that the text, structure, and purpose of the Federal Arbitration Act all point to the conclusion that a court does not have the discretion to dismiss a suit when arbitration is requested. [Extracted from the article]

The Supreme Court has granted certiorari to hear the case of Cantero v. Bank of America, which raises the question of whether the National Bank Act preempts state escrow-interest laws for national banks. The plaintiffs in the case are homeowners who allege that Bank of America failed to pay interest on their escrow accounts as required by New York law. The Second Circuit held that the New York law was preempted by the National Bank Act, while a Ninth Circuit case reached the opposite conclusion. The Supreme Court's decision in Cantero may provide clarity on the issue of NBA preemption. [Extracted from the article]

Bumble Bee I promptly led to a spate of decertification motions in courts across the country, as defendants took notice of the Ninth Circuit's guidance and sought to press other jurisdictions to follow suit.72 Meanwhile the plaintiffs' bar was outspoken in its criticism of the decision, arguing that it would make it more challenging for injured parties to obtain relief.73 Numerous interest groups supported the Ninth Circuit's rehearing the case en banc, even if they did not agree on how the case should ultimately be decided. For decades, litigants embroiled in antitrust class action suits have buzzed about Rule 23's predominance requirement. And while defendants have due process rights to litigate their defenses, plaintiffs have due process interests in having their claims heard, without the procedural safeguards of Rule 23 serving as insurmountable obstacles to relief. But before the court could consider whether to certify a class again, Allergan sent offers of judgment to Plaintiffs under Federal Rule of Civil Procedure 68. [Extracted from the article]

First, Lowery asserted that "a district court may not approve a class-action settlement that provides monetary relief only in the form of cy pres payments to third parties." The Supreme Court took up Frank v. Gaos in 2018 to determine whether a "cy pres-only" settlement may be considered "fair, reasonable, and adequate" under Federal Rule of Civil Procedure 23(e). [Extracted from the article]

The U.S. Supreme Court recently ruled in the case of Macquarie Infrastructure Corp. v. Moab Partners that a failure to disclose information required by SEC Regulation S-K's Item 303 cannot support a private action under Rule 10b-5(b) of the Securities Exchange Act of 1934, unless the omission renders any "statements made" misleading. The Court clarified that Rule 10b-5(b) does not prohibit pure omissions, but only addresses half-truths. This ruling affirms that pure omissions are not actionable under Rule 10b-5(b). [Extracted from the article]

A federal habeas petitioner whose state conviction was tainted by constitutional error that a state appeals court found harmless beyond a reasonable doubt must pass two tests to obtain relief. The Supreme Court has said that the second test “subsumes” the first, but disagreement has emerged in the lower courts about whether and how a habeas court must apply the first test if the second test has been satisfied. The petition for certiorari asks the Court to resolve this disagreement. [ABSTRACT FROM AUTHOR]

The article discusses the case Loper Bright Enterprises Inc. v. Raimondo wherein the U.S. Supreme Court granted certiorari. Topics discussed include herring fishing companies' move to challenge the National Marine Fisheries Services' rule requiring federal monitors during fishing trips, the possibility that the court will reconsider or overturn the case Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., and the implication of the Loper case on federal executive power.

In the meantime, companies with forum-selection bylaws should prepare for the increased likelihood of having to defend shareholder derivative suits based on federal claims in federal court and, in particular, in courts within the Seventh Circuit. The court explained that the forum-selection clause in Breman, unlike the forum-selection clause at issue, was deemed valid because it involved a "purely private contractual dispute" and did not implicate a federal statute. [Extracted from the article]

In response, the Bureau held a second hearing, in which a properly appointed administrative law judge again ruled in favor of the Bureau based on a review of the record of the initial proceeding. On June 12, 2023, the U.S. Supreme Court denied a petition for certiorari in Integrity Advance, LLC et al. v. CFPB. [Extracted from the article]

Of all the cert-stage documents, it is the petition that gets the most attention, the petition that drives the press coverage, the petition that largely determines what issues the parties must address. During October Term 2014, the Supreme Court granted review in just 3.47 percent of "paid" cases (that is, cases where the petitioner can pay filing fees and printing costs). True "vehicle problems" are facts about a case that would prevent the Court from reaching the question posed by the petition, although the term is also sometimes used loosely to encompass facts that simply make the case less desirable from the Court's perspective. Lopsided splits with only a single court on one side are less likely to interest the Supreme Court, at least if an argument can be made that the outlier court of appeals might reconsider its position in light of the weight of contrary or intervening authority. [Extracted from the article]

Employers will still need to carve out sexual harassment and sexual assault claims, be mindful of how to address PAGA claims, and understand that courts may invalidate arbitration agreements based on other applicable cor defenses such as fraud or unconscionability. In the interim, employers may require California employees to sign non-negotiable arbitration agreements to obtain or maintain employment. [Extracted from the article]

Environmental groups have recently used the CWA's citizen suit provisions in several cases that pose the question: Does the discharge to groundwater directly give rise to CWA jurisdiction? The CWA authorizes the EPA (or a state agency with delegated authority) to enforce the permit requirements and also provides for citizen suits. Conclusion A split among the circuits increases the likelihood that the Supreme Court will take up the issue of whether the CWA reach extends to discharges of pollutants to navigable water via groundwater. [Extracted from the article]

Environmental groups have recently used the CWA's citizen suit provisions in several cases that pose the question: Does the discharge to groundwater directly give rise to CWA jurisdiction? Conclusion A split among the circuits increases the likelihood that the Supreme Court will take up the issue of whether the CWA reach extends to discharges of pollutants to navigable water via groundwater. The CWA authorizes the EPA (or a state agency with delegated authority) to enforce the permit requirements and also provides for citizen suits. [Extracted from the article]

As evidenced by the CFPB's request that the Supreme Court hear the case this very term, the CFPB clearly views Community Financial Services as an existential threat to its very existence. On February 27, 2023, the Supreme Court of the United States granted the petitions for writs of certiorari filed in CFPB et. al. v. Com. Fin. Services Ass'n., where a panel of the United States Court of Appeals for the Fifth Circuit ruled that the funding mechanism of the Consumer Financial Protection Bureau (CFPB) is unconstitutional, and ultimately invalidated the payday lending rule at issue in that case. [Extracted from the article]

Plaintiff Pirani purchased 30,000 Slack shares that day and subsequently purchased 220,000 additional shares over several months. Petition at i. The cert petition arose from the Ninth Circuit Court of Appeals' decision in Pirani v. Slack Techs., Inc., No. 20-16419 (9th Cir. Practitioners should be aware that on December 13, 2022, the Supreme Court of the United States granted Slack Technologies, LLC's petition for writ of certiorari in Slack Techs., LLC v. Pirani, No. 22-200 (S.Ct.). [Extracted from the article]

Coinbase then filed an interlocutory appeal with the U.S. Court of Appeals for the Ninth Circuit challenging the decision and simultaneously sought to stay the litigation pending a decision on the appeal. The U.S. Supreme Court has granted certiorari in Coinbase Inc. v. Bielski, No. 22-105 to resolve a 6-3 federal circuit split as to whether the appeal of a denial of a motion to compel arbitration mandates that the district court stay the underlying litigation pending the appeal or permits the district court to decide on an individual case-by-case basis whether to place the proceedings on hold. [Extracted from the article]

On October 10, SCOTUS agreed to review challenges to a special master's report in this case where SCOTUS has original jurisdiction. November 17, 2017 Waters of the U.S. (WOTUS) is perhaps the highest-profile environmental case in the U.S. Supreme Court (SCOTUS) so far in 2017, but it is not the only environmental or energy litigation appeal that will be, or might be, decided by the Court. Conclusion These and many other cases will wind their way through the court system, and, whether or not they are decided by SCOTUS, may have substantial impacts on environmental and energy litigation practices. [Extracted from the article]

The article discusses the court case MHN Government Services v. Zaborowski in which the Supreme Court granted certiorari to decide whether the Federal Arbitration Act (FAA) preempts California's arbitration-only severability rule. Topics covered include arbitration agreement according to the FAA, section 2, the case AT&T Mobility LLC v. Concepcion, and refusal of California courts to enforce arbitration agreements based on state law defenses.

In the Republican attorneys general brief, amici argue that the Supreme Court should grant certiorari and affirm the Fifth Circuit's ruling, "apply[ing] its reasoning nationwide." On December 14, 2022, twenty-two Democratic and sixteen Republican state attorneys general filed separate amicus briefs requesting that the U.S. Supreme Court grant cross-petitions for certiorari in CFPB v. Community Financial Services Association of America, Ltd. [Extracted from the article]

{BEST OF ABA SECTIONS} JUDICIARY In the polarized political climatethat has characterizedthe United States in recentyears, it is hardly surprisingthat some judges have givenin to the temptation to ventureonto social media to weigh in onpolitical issues and controversies. Rule 2.11(A)(1)of the Model Code states thata judge "shall disqualify himselfor herself in any proceedingin which the judge's impartialitymight reasonably be questioned,"including circumstances wherethe judge "has a personal biasor prejudice concerning a partyor a party's lawyer, or personalknowledge of facts that are indispute in the proceeding." On the sameday as his decision, the motherposted, "the Honorable judge hasgranted everything we requested."The husband discovered the Facebookconnection and moved forreconsideration of the ruling andfor the judge's disqualification. [Extracted from the article]

This articles highlights how the U.S. courts have treated Argentina harshly over sovereign debt default matter. The U.S. Supreme Court rejected Argentina's petition in its June 2014 decision for certiorari to remove the injunctions issued by the U.S. District Court for the Southern District of New York (SDNY). Argentina has decided to move its restructured debt out of the ambit of the SDNY's injunctions.

This article summarizes the fuller version for which the author in 2014 received the Section's Gellhorn-Sargentich Law Student Essay Award. The Supreme Court subsequently granted certiorari in Mortgage Bankers Ass'n v. Harris, 720 F.3d 966 (D.C. Cir. 2013). On March 9, 2015, the Court struck down the Alaska Hunters doctrine 9-0. See Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199 (2015) - also analyzed below, this issue, Supreme Court News, p 15. The Section again expresses its appreciation to the Gellhorn-Sargentich Awards committee for diligent work in reviewing last year's submissions and selecting this winner - thus also, as we now know, for prescience in choosing an emerging "hot" administrative law topic as the focus of this most recent law student essay award. (The fuller version of the winning article appeared in the Vanderbilt Law Review in April 2014 [ABSTRACT FROM AUTHOR]

This section offers Supreme Court cases news briefs as of July 2014. Two court cases on the application of the Fourth Amendment for cellphone searches were argued in cases Riley v. California and United States v. Wurie. Stays of execution were denied by the Court due to dissenting opinion of Justices E. Kagan, S. Breyer and S. Sotomayor in drug cases Ferguson v. Lombardi and Villegas v. Texas. A certiorari was granted by the Court and the death penalty reversed in the case Hinton v. Alabama.

The article discusses the U.S. Supreme Court case Alice Corp. Pty. Ltd. v. CLS Bank International and CLS Services Ltd. dealing with patent claims of computer implemented systems. CLS Bank filed a suit seeking invalidity of Alice's patents and absolving CLS from Alice's counterclaim. The district court invalidated Alice's patent claims, thus, Alice filed for certiorari to the Federal Circuit.

The article reports on the petition to review the greenhouse gas (GHG) rules under the Clean Air Act (CAA) of the Environmental Protection Agency (EPA) to the U.S. Supreme Court. It states that Utility Air Regulatory Group v. EPA is one of the six cases that the U.S. Court granted a cetiorari. Also mentioned is that EPA already determined the various effects of GHG that threatens the public health and the application of CAA provision Prevention of Significant Deterioration (PSD) to GHG rules.

In the decision below, the Seventh Circuit declined Servotronics' request for discovery assistance in connection with a private arbitration in the United Kingdom, and Servotronics petitioned the Supreme Court for certiorari. On the chance that the Court splits 4-4, then the Seventh Circuit decision could potentially be affirmed by an equally divided Supreme Court, which may leave no clarity at all for parties who confront this issue in the future. On March 22, 2021, the United States Supreme Court granted certiorari in Servotronics Inc. v. Rolls-Royce PLC, No. 20-794, to determine whether the discretion granted to district courts under 28 U.S.C. § 1782 ("§ 1782") to render assistance in gathering evidence for use in a "foreign or international tribunal" includes compelling discovery in aid of private commercial arbitrations (in contrast to treaty-based arbitrations). [Extracted from the article]

The article focuses on the issues regarding State Parens Patriae actions to be addressed by the U.S. Supreme Court on claims of Class Action Fairness Act (CAFA) jurisdiction. Topics discussed include CAFA's "Class Action" and "Mass Action" provisions, CAFA's "public interest" exception to mass action removability, and the Supreme Court's grant of certiorari on the issue of Removal of Parens Cases as Mass Actions. State's sovereign or quasi-sovereign interests is also mentioned.

The article discusses the arbitrability options of the U.S. Supreme Court in an international arbitration case Republic of Argentina v. BG Group PLC. Topics covered include arbitrability, bilateral investment treaty (BIT) and the U.S. Solicitor General (SG) brief that recommends the petition for certiorari be denied. Also mentioned are the preconditions to arbitration, the gateway question, and the Vienna Convention on the Law of Treaties.

The article presents a number of cases of interest in the US District Court for the District of Columbia. It notes that since October 2012 the Court already granted certiorari in eight new cases of interest to the criminal justice community, making a total of 27 cases on its 2012 Term docket. Of these cases, 3 has been decided as of January 25, and 23 will have been argued through March 2013.

The article discusses several Supreme Court cases decided from March to April 2012. The U.S. Supreme Court has granted a judicial review of the Lafler v. Cooper case which addresses the ineffective assistance of counsel for plea offers. The article cites the granting of certiorari in the case of Ryan v. Gonzales with an inquiry into the Ninth Circuit court's agreement for an indefinite stay of proceedings due to the defendant's incompetency to assist counsel.

The article reports on the U.S. Supreme Court's rejection of petitions to review two aviation-related cases addressing federal preemption defenses. The defenses raised by the petitions for certiorari dealt with the preemption of state-law-based tort claims by the government-contractor defense and the aircraft owner/lessor immunity statute under U.S. Code 49. The background and key points of the court cases, Getz vs. the Boeing Co., and Aerolease of Am. Inc. vs. Vreeland are highlighted.

The article discusses the concept of mandate and its significance in the appellate court. The author explains several situations involving the scope of the proceedings during petition, judgment and pending certiorari as 90 days is the maximum allowable time. She concludes that while mandate is an opinion of the court, it also has an influence on jurisdiction.