July 1, 2014
Today, the Supreme Court granted certiorari in seven cases of interest to the business community:
Pregnancy Discrimination Act—Work Accommodations
The Pregnancy Discrimination Act provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). Today, the Supreme Court granted certiorari in Young v. United Parcel Service, No. 12-1226, to decide whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”
Peggy Young, an “air driver” for UPS whose job involved loading and delivering packages, claimed that UPS violated the Pregnancy Discrimination Act when it denied her request for a temporary alternate work assignment during her pregnancy. UPS denied her request based on the company’s collectively bargained accommodations policy. The policy provides that temporary alternative work assignments are available only to: (1) employees who are unable to perform their regular jobs because of on-the-job injuries; (2) employees who have a condition or impairment that restricts performance and otherwise qualifies as a disability under the Americans with Disabilities Act; or (3) drivers who lose their Department of Transportation certifications. After exhausting her remedies with the Equal Employment Opportunity Commission, Young filed suit, alleging that UPS violated the Pregnancy Discrimination Act when it failed to provide her with the same accommodations that it provided to non-pregnant employees who were similar in their ability to work. The district court granted UPS’s motion for summary judgment in part because the court concluded that Young had not shown direct evidence of discrimination and could not show that the UPS policy was a pretext for discrimination.
The Fourth Circuit affirmed, concluding that UPS’s accommodations policy was “pregnancy-blind.” Young v. United Parcel Service, 707 F.3d 437, 446, 450 (4th Cir. 2013). But the court acknowledged its disagreement with a decision of the Sixth Circuit, Ensley-Gaines v. Runyon, 1000 F.3d 1220 (6th Cir. 1996), that allowed a Pregnancy Discrimination Act claim based on a similar policy to proceed. In her petition for certiorari, Young argues that the Fourth Circuit’s decision also conflicts with the Tenth Circuit’s decision in EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000), but is in accord with decisions in the Fifth, Seventh, and Eleventh Circuits.
This case is of significant interest to the business community because it will determine whether the Pregnancy Discrimination Act requires employers to provide the same accommodations to pregnant and non-pregnant employees who are “similar in their ability or inability to work.”
Barring extensions, which are likely, amicus briefs in support of the petitioner are due on August 22, 2014, and amicus briefs in support of the respondent are due on September 23, 2014. Any questions about the case should be directed to Miriam Nemetz (+1 202 263 3253) in our Washington office.
False Claims Act—Wartime Suspension of Limitations and the “First to File” Rule
The False Claims Act (“FCA”) permits a private individual to bring a fraud claim on behalf of the United States government—a “qui tam” action—and to share in the damages if the suit succeeds. Qui tam actions must be brought within six years of the fraud or three years from when the government should have known about the fraud. See 31 U.S.C. § 3731(b). Under the Wartime Suspension of Limitations Act (“WSLA”), however, this period is suspended “[w]hen the United States is at war.” 18 U.S.C. § 3287. The FCA also contains a “first-to‑file” provision, which provides that once an individual brings a qui tam action, “no person other than the Government may . . . bring a related action based on the facts underlying the pending action.” 31 U.S.C § 3730(b)(5). Today, the Supreme Court granted certiorari in Kellogg Brown & Root Services, Inc. v. Unites States ex rel. Carter, No. 12‑1497, to decide two issues: (1) whether the WSLA applies to civil (as opposed to criminal) fraud claims; and (2) whether the first-to-file rule bars an individual from filing a qui tam suit when a similar qui tam suit has been filed but has been subsequently dismissed, and thus is no longer “pending.”
In 2006, Benjamin Carter brought a qui tam action against a number of companies, including Kellogg Brown & Root Services, Inc., alleging that KBR fraudulently overbilled the government for work on water-purification projects in Iraq. The district court dismissed the suit as barred by both the statute of limitations and the first‑to‑file rule. A divided Fourth Circuit reversed. It held that, under the WSLA, the war in Iraq tolled the FCA’s statute of limitations with respect to both civil and criminal fraud claims, whether brought by a private individual or by the United States itself. The court also held that the first-to-file rule did not bar Carter’s lawsuit; even though a related suit was pending when Carter’s suit was filed, the earlier action had been dismissed before the district court’s decision, and thus no longer barred Carter’s action. The Supreme Court granted certiorari in the apparent absence of a square circuit split on the first question (and only a narrow, recent conflict with the D.C. Circuit on the second), and over the contrary recommendation of the Solicitor General.
Both of these issues are of great importance to the business community because of their potential to extend exposure to FCA liability indefinitely. Under the Fourth Circuit’s reading of the WSLA, the statute of limitations arguably has not even begun to run with respect to qui tam actions addressing conduct dating back to 2001. And it will not begin to run until Congress terminates the authorizations for use of military force in Iraq and Afghanistan. Moreover, under the Fourth Circuit’s reading of the first-to-file rule, duplicative qui tam actions that were barred at the time of filing can be revived and refiled—or simply maintained in the face of a motion to dismiss—so long as related prior claims have been dismissed in the meantime. Both holdings encourage prospective qui tam plaintiffs to delay filing claims while depriving government contractors of meaningful repose from potential FCA liability.
Absent extensions, which are likely, amicus briefs in support of the petitioners will be due on August 22, 2014, and amicus briefs in support of the respondent will be due on September 22, 2014. Any questions should be directed to Brian D. Netter (+1 202 263 3339) in our Washington office.
Natural Gas Act—Federal Preemption Of State-Law Antitrust Claims
The Natural Gas Act, 15 U.S.C. § 717 et seq., grants the Federal Energy Regulatory Commission exclusive authority to regulate certain segments of the natural-gas market. The statute draws a line between different kinds of natural-gas sales: FERC has the exclusive authority to regulate wholesale sales of natural gas, but retail purchases of natural gas fall outside of FERC’s jurisdiction. Today, the Supreme Court granted certiorari in OneOK, Inc. v. Learjet, Inc., No. 13-271, to decide whether the Natural Gas Act preempts state-law antitrust claims challenging industry practices that affect the wholesale natural-gas market when those claims are asserted by litigants that purchased natural gas in retail transactions. The Court granted review after requesting the views of the Solicitor General, who recommended that the petition be denied.
Respondents were retail purchasers of natural gas during the energy crisis of 2000–2002. They sued petitioners, which were natural-gas traders during that period. The complaint alleged that petitioners manipulated the price of natural gas by reporting false information to price indices published in trade publications and by engaging in “wash sales,” which are prearranged sales in which traders execute a trade on an electronic platform and then immediately offset that trade by executing an equal and opposite trade. Petitioners moved for summary judgment on preemption grounds, and the district court granted the motion.
The Ninth Circuit reversed, holding that the Natural Gas Act does not preempt respondents’ state-law antitrust claims. In the court of appeals’ view, the Natural Gas Act applies only to transportation of natural gas in interstate commerce, wholesale transactions in natural gas, and natural-gas companies engaged in such transportation and sales. While respondents’ allegations challenged industry practices affecting wholesale transactions in natural gas, the court tied the preemptive effect of the Natural Gas Act to the nature of the transactions at issue, finding dispositive the fact that respondents’ retail purchases of natural gas were not subject to FERC’s jurisdiction. The petition for certiorari asserted that the Ninth Circuit’s ruling conflicts with decisions of the Tennessee and Nevada Supreme Courts holding that state-law antitrust claims arising out of similar facts were preempted by the federal statute.
The Supreme Court’s decision should be of great interest to all participants in the natural-gas markets because it likely will determine whether retail purchasers of natural gas may bring state-law claims alleging anticompetitive conduct by businesses engaged in the transportation, marketing, or sale of natural gas. Whether such state-law claims may coexist with the federal regulatory scheme will be of particular importance to businesses whose practices are regulated by FERC under the Natural Gas Act.
Absent extensions, which are likely, amicus briefs in support of petitioners will be due on August 22, 2014, and amicus briefs in support of respondents will be due on September 22, 2014. Any questions about the case should be directed to Dan Himmelfarb (+1 202 263 3035) in our Washington office.
Lanham Act—Preclusive Effect of Finding of Likelihood of Confusion by Trademark Trial and Appeal Board
Under the Lanham Act, the owner of an existing registered trademark may oppose the proposed registration of a new mark before the Trademark Trial and Appeal Board (“TTAB”) if registration of the proposed mark is likely to cause confusion with the owner’s registered mark. The Lanham Act also provides that the owner of a mark may bring a civil action for trademark infringement in federal district court against any person who uses a mark that is likely to cause confusion with the owner’s mark. Today, the Supreme Court granted certiorari in B&B Hardware Inc. v. Hargis Industries, Inc., No. 13-352, to decide (1) whether the TTAB’s finding that the proposed mark created a likelihood of confusion should be given preclusive effect in a subsequent infringement action in federal court; and (2) whether, if issue preclusion does not apply, the TTAB’s finding is entitled to deference in a subsequent infringement action in federal court.
In this case, Petitioner B&B Hardware registered the trademark “SEALTIGHT” for a fastener system. Some years later, Respondent Hargis Industries applied to register the mark “SEALTITE” for a similar fastener system. B&B Hardware initiated a proceeding in the TTAB against Hargis Industries’ proposed mark. The TTAB sustained B&B Hardware’s opposition and refused to register Hargis Industries’ mark, finding that there was a likelihood of confusion between the two parties’ marks. B&B Hardware also brought a trademark-infringement action against Hargis Industries in the United States District Court for the Eastern District of Arkansas. The district court rejected B&B Hardware’s argument that it should give preclusive effect to the TTAB’s prior likelihood-of-confusion findings, or in the alternative, that it should give deference to those findings. A jury then found that Hargis Industries’ mark was not likely to cause confusion and returned a verdict against B&B Hardware.
The Eighth Circuit affirmed, holding that the TTAB’s likelihood-of-confusion findings did not address the same issues before the district court. The court noted that the TTAB used only 6 of the 13 factors that the Eighth Circuit uses to determine likelihood of confusion and did not place the same emphasis as the Eighth Circuit would on the marketplace context of the marks. The court also distinguished the TTAB’s likelihood-of-confusion findings because Hargis Industries bore the burden of persuasion before the TTAB, whereas B&B Hardware bore the burden of persuasion in the infringement action.
The Federal, Second, Third, Fifth, Seventh, and Eleventh Circuits also have addressed this issue and have adopted inconsistent approaches and different tests for determining the preclusive effect of a TTAB likelihood-of-confusion determination in subsequent infringement litigation.
This case is of interest to all trademark users and owners because the Supreme Court’s decision will determine the effect that a likelihood-of-confusion finding by the TTAB will have on subsequent trademark-infringement actions.
Absent extensions, which are likely, amicus briefs in support of the petitioner will be due on August 22, 2014, and amicus briefs in support of the respondent will be due on September 22, 2014. Any questions about the case should be directed to Brian D. Netter (+1 202 263 3339) in our Washington office.
Railroad Revitalization and Regulatory Reform Act—Discriminatory State Taxation
The Railroad Revitalization and Regulatory Reform Act of 1976 (the “4-R Act”) prohibits states from imposing any “tax that discriminates against a rail carrier.” 49 U.S.C. § 11501(b)(4). In an earlier opinion, the Supreme Court allowed rail carriers to bring suit in federal court to challenge a state’s sales-and-use tax because that tax applies to rail carriers but exempts their competitors. CSX Transportation v. Alabama Department of Revenue, 131 S. Ct. 1101 (2011).
Today, the Supreme Court granted certiorari in Alabama Department of Revenue v. CSX Transportation, Inc., 13-553, to decide: (1) whether a state “discriminates against a rail carrier” in violation of § 11501(b)(4) when it requires all commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads’ competitors; and (2) whether, in resolving a discrimination claim under § 11501(b)(4), a court should consider other aspects of the state’s tax scheme to determine the overall tax burden placed on the railroad and its competitors rather than focusing solely on the challenged tax provision.
The petitioner is a rail carrier that is subject to Alabama’s sales tax for its purchases of diesel fuel in the state. Under separate statutory provisions, however, petitioner’s competitors in the state—motor and water carriers—are exempt from paying the sales tax for their diesel-fuel purchases. In the decision below, the Eleventh Circuit held that the state’s sales tax therefore violates the 4-R Act.
The Eleventh Circuit determined that, in deciding whether the tax is discriminatory, it was appropriate to compare the petitioner to its competitors rather than to all other commercial and industrial taxpayers in the state. Using this “competitive approach,” the Eleventh Circuit found that the petitioner had established a prima facie case of discrimination by showing that its competitors are exempt from the state’s sales tax. The Eleventh Circuit then found that the state had failed to meet its burden of offering a “substantial justification” for exempting motor and water carriers, but not rail carriers, from the tax, refusing to consider the effects of other state taxes on the relevant comparison class. Specifically, the Eleventh Circuit declined to consider the state’s argument that motor carriers pay a roughly equivalent amount of tax to the state on diesel-fuel purchases through the imposition of other taxes.
The Supreme Court’s resolution of the issues in this case will be of significant interest to the rail industry because it will clarify the scope of protection against discriminatory taxation provided by the 4-R Act. Absent extensions, which are likely, amicus briefs in support of the petitioner will be due on August 22, 2014, and amicus briefs in support of the respondents will be due on September 22, 2014. Any questions about this case should be directed to Andrew Tauber (+1 202 263 3324) in our Washington office.
Bankruptcy—Powers of Bankruptcy Courts
The Supreme Court held in Stern v. Marshall, 131 S. Ct. 2594, 2620 (2011), that bankruptcy courts “lack the constitutional authority to enter a final judgment on a state law counterclaim that is not resolved in the process of ruling on a creditor’s proof of claim.” Today, the Court granted certiorari in Wellness International Network, Ltd. v. Sharif, No. 13-935, to clarify the scope of Stern’s holding and to determine whether the consent of the parties is sufficient to confer authority on bankruptcy courts to issue final judgments that would otherwise be barred by Stern—an issue that the Court declined to address in its recent opinion in Executive Benefits Insurance Agency v. Arkison, No. 12-1200.
Because the Court’s resolution of Sharif is likely to affect the types of claims that may be decided by bankruptcy courts, the decision may prove significant for all businesses involved in bankruptcy proceedings as either creditors or debtors.
Sharif sued Wellness International Network, alleging that WIN was running an illicit pyramid scheme. After Sharif ignored WIN’s discovery requests, the district court imposed sanctions of more than $650,000 in attorney’s fees. Sharif then filed for bankruptcy.
WIN filed an adversary proceeding in the bankruptcy court, seeking both to prevent discharge of Sharif’s debts and to obtain a declaratory judgment that a particular trust constituted Sharif’s alter ego as a matter of state law. Sharif again failed to comply with discovery orders, and the bankruptcy court entered a default judgment in WIN’s favor. Sharif then appealed to the district court, which affirmed. In particular, although Sharif argued that Stern prevented the bankruptcy court from entering a final judgment on WIN’s alter-ego claim, the district court held that Sharif had waived the issue by waiting too long to raise it.
The Seventh Circuit affirmed in part and reversed in part. Recognizing that the bankruptcy court possessed the constitutional authority to enter final judgment on WIN’s objection to the discharge of Sharif’s debts, the court of appeals nonetheless held that the bankruptcy court lacked constitutional authority to enter a final judgment on the alter-ego claim. The Seventh Circuit concluded that WIN’s alter-ego claim “is indistinguishable” in “almost all material respects” from the state-law counterclaim for tortious interference at issue in Stern. Wellness Int’l Network, Ltd. v. Sharif, 727 F.3d 751, 774 (7th Cir. 2013). Specifically, the Seventh Circuit concluded that, like the claim in Stern, WIN’s alter-ego claim represented “a state-law claim between private parties that is wholly independent of federal bankruptcy law,” “is not resolved in the claims-allowance process,” and “is intended only to augment the bankruptcy estate.” Id. at 774-75.
The Seventh Circuit further held that the parties’ consent cannot confer authority on the bankruptcy court to issue a final judgment otherwise barred by Stern.
Absent extensions, which are likely, amicus briefs in support of the petitioners will be due on August 22, 2014, and amicus briefs in support of the respondent will be due on September 22, 2014. Any questions about these cases should be directed to Donald M. Falk (+1 650 331 2030) in our Palo Alto office.
Tax Injunction Act—Application to Suits Challenging State Notice And Reporting Requirements
The Tax Injunction Act provides that “[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341. Today, the Supreme Court granted certiorari in Direct Marketing Association v. Brohl, No. 13-1032, to determine whether the Tax Injunction Act bars federal courts from exercising jurisdiction over a suit to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax nor requires collection of a tax.
Petitioner Direct Marketing Association filed a federal action seeking to invalidate as unconstitutional a Colorado state law that imposes notice and reporting requirements on retailers that do not collect Colorado sales tax. Most of these “non-collecting” retailers sell their products by mail or online. To facilitate the collection of tax directly from purchasers, the Colorado statute requires non-collecting retailers to (1) notify purchasers that they are obligated to pay tax owed, (2) provide customers who purchased more than $500 in goods in a single calendar year with a list of their purchases, and (3) report to the Colorado Department of Revenue the names, addresses, and total purchases of their Colorado purchasers. Retailers that fail to comply with these notice and reporting requirements are subject to penalties.
The district court entered a permanent injunction barring enforcement of the Colorado law, concluding that it discriminated against and unduly burdened interstate commerce. On appeal, the Tenth Circuit did not reach the merits, but instead held that the Tax Injunction Act divested the district court of jurisdiction to enjoin enforcement of the Colorado law. It reasoned that the lawsuit “restrained” the collection of tax because, “if successful, [it] would limit, restrict, or hold back the state’s chosen method of enforcing its tax laws and generating revenue.” 735 F.3d at 913. The Tenth Circuit acknowledged that its ruling was in conflict with a decision of the First Circuit, which had held that the Butler Act (an analog of the Tax Injunction Act) did not bar UPS’s challenge to a Puerto Rico law that prohibited interstate carriers from delivering packages unless the recipient presented a certificate of excise tax payment. The First Circuit had ruled that the Butler Act did not apply because UPS was not a taxpayer and was not challenging the amount or validity of Puerto Rico’s tax.
This case is important to online retailers and other sellers that do not collect state tax but may be subject to notice-and-reporting requirements like those imposed by Colorado. More broadly, the case may define the limits of the Tax Injunction Act and therefore may be of interest to any businesses that may challenge state tax laws.
Absent extensions, which are likely, amicus briefs in support of the petitioner will be due on August 22, 2014, and amicus briefs in support of the respondent will be due on September 22, 2014. Any questions about the case should be directed to Miriam Nemetz (+1 202 263 3253) in our Washington office.
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