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Archives

  • Securities Law—Scheme Liability

    Lorenzo v. SEC, No. 17-1077 The federal securities laws distinguish between claims for fraudulent misstatements and willful participation in a scheme to defraud. In this case, the D.C. Circuit concluded that the SEC erred in concluding that the petitioner made fraudulent misstatements, because the misstatements at issue came in emails that he did not actually […]

  • Antitrust Law—Damages for Indirect Purchasers

    Apple Inc. v. Pepper, No. 17-204 A putative class of consumers brought an antitrust suit against Apple, alleging that it illegally monopolized the distribution of iPhone applications (“apps”) through its “App Store,” and that the commissions charged to app developers inflate the prices consumers ultimately pay for the apps. The district court dismissed the action […]

  • Railroad Retirement Tax Act—Time Lost from Work

    BNSF Railway Co. v. Loos, No. 17-1042 Railroad workers do not participate in the social security system. Instead, there is a separate railroad retirement system, which is funded (like social security) from employment taxes paid by employees and employers. The Railroad Retirement Tax Act assesses taxes on “compensation.” The Supreme Court will decide next Term […]

  • Class Action Settlements—Cy Pres Awards

    Frank v. Gaos, No. 17-961 Federal Rule of Civil Procedure 23(e) authorizes district courts to approve class action settlements only when the terms of the settlement are “fair, reasonable, and adequate.” In this case, the parties agreed to settle the plaintiffs’ privacy claims on behalf of a class of 129 million individuals. Rather than distribute […]

  • Federal Arbitration Act—Class Arbitration

    Lamps Plus, Inc. v. Varela, No. 17-988 The Supreme Court has held that parties may not be compelled to arbitrate claims on a class-wide basis unless there is a “contractual basis” for concluding that the parties have “agreed to” class arbitration. Lamps Plus concerns an arbitration agreement that does not mention class arbitration, but that the Ninth […]

  • Federal Arbitration Act—Exemption for Contracts of Employment

    New Prime, Inc. v. Oliveira, No. 17-340 Section 1 of the Federal Arbitration Act excludes from the Act’s coverage “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”  Today, the Supreme Court decided to resolve divisions among the lower courts as to two aspects of […]

  • Endangered Species Act—Definition of “Critical Habitat”

    Weyerhaeuser Co. v. Fish and Wildlife Service, No. 17-71 The Endangered Species Act requires the Secretary of the Interior to “designate any habitat” of listed endangered species “which is then considered to be critical habitat.” The Act defines “critical habitat” to mean “the specific areas within the geographical area occupied by the species … on […]

  • Bankruptcy Law—Fraud Exception to Discharge

    Lamar, Archer & Cofrin, LLP v. Appling, No. 16-1215 The Bankruptcy Code prohibits the discharge of “any debt . . . to the extent obtained by . . . actual fraud, other than a statement respecting the debtor’s . . . financial condition.”  11 U.S.C. § 523(a)(2).  Circuit courts have split 3-3 as to whether a statement about […]

  • Dormant Commerce Clause—Taxation of Internet Sales

    South Dakota v. Wayfair, Inc., No. 17-494 In 1967, the Supreme Court held that the Constitution’s dormant Commerce Clause prohibits a state from requiring catalog retailers to collect sales taxes on sales into the state unless the retailer is “physically present” there. But in 1977, the Court held that only a “substantial nexus” was necessary […]

  • Appointments Clause—Classification of Administrative Law Judges

    Lucia v. SEC, No. 17-130 Under the Constitution’s Appointments Clause, the President “shall nominate and, by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States.” SEC administrative law judges are generally selected by Commission staff, even though these judges preside over trial-like adversarial hearings. The […]

  • Patent Law—Damages For Profits Lost Abroad

    WesternGeco LLC v. ION Geophysical Corp., No. 16-1011 A party commits patent infringement if it supplies “components of a patented invention” “from the United States,” knowing or intending that the components will be combined “outside of the United States” in a manner that “would infringe the patent if such combination occurred within the United States.” […]

  • First Amendment—Partisan Gerrymandering

    Benisek v. Lamone, No. 17-333 For the second time this Term, the Supreme Court has agreed to consider whether partisan gerrymandering violates the U.S. Constitution.  In this case, the Court will decide whether Maryland lawmakers violated the First Amendment when they singled out voters in Maryland’s Sixth Congressional District for disfavored treatment on the basis […]

  • Class Actions—Tolling of Statute of Limitations

    ­China Agritech, Inc. v. Resh, No. 17-432 Under American Pipe & Construction Co. v. Utah, the filing of a class action that is ultimately deemed defective tolls the claims of the absent class members.  The Court granted certiorari to decide whether tolling applies only if the absent class member subsequently brings an individual suit or […]

  • Sherman Act—Rule of Reason

    Ohio v. American Express Co., No. 16-1454 As part of its standard contractual agreement, AmEx prohibits the merchants in its network from incentivizing their customers to use credit cards that charge lower processing fees.  A dozen states challenged the practice under federal antitrust law.  After the district court found a violation of Section 1 of […]

  • Stored Communications Act—Extraterritorial Application

    United States v. Microsoft Corp., No. 17-2 The Stored Communications Act permits the government to procure warrants to obtain information from providers of electronic communications services or remote computing services, when it has probable cause to believe that a crime is being committed.  Today, the Supreme Court agreed to resolve a dispute concerning whether the […]

  • Labor Law—Mandatory Union Fees for Public-Sector Employees

    Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466 Under Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Constitution permits the government to require public-sector employees to pay agency fees to the labor union that represents their interests.  Last Term, the Supreme Court divided equally in Friedrichs v. California […]

  • Fair Labor Standards Act—Car Dealer Service Advisors

    Encino Motorcars, LLC v. Navarro, No. 16-1362 The Fair Labor Standards Act requires that certain employees be paid overtime.  Two Terms ago, the Supreme Court agreed to decide whether service advisors at car dealers—the employees who interact with vehicle owners when they take their cars in for repair—are subject to the exemption from the overtime […]

  • Appellate Jurisdiction—Cases Consolidated in District Court

    Hall v. Hall, No. 16-1150 Federal Rule of Civil Procedure 42 permits a district court to consolidate actions that involve a common question of law or fact.  Sometimes, even though cases are consolidated, one of the consolidated cases will reach final judgment while others remain pending.  The lower courts have divided as to whether a […]

  • Foreign Sovereign Immunity—Attachment of Assets Owned by State Sponsors of Terrorism

    Rubin v. Islamic Republic of Iran, No. 16-534 The Foreign Sovereign Immunities Act (FSIA) generally prohibits U.S. courts from attaching property of a foreign state that is within the territorial boundaries of the United States. In this case, plaintiffs seeking to enforce a money judgment against the Islamic Republic of Iran seek to attach a […]

  • Tenth Amendment—Federal Commandeering of State Regulatory Power

    Christie v. NCAA, No. 16-476 N.J. Thoroughbred Horsemen’s Ass’n v. NCAA, No. 16-477 The Professional and Amateur Sports Protection Act (PASPA) prohibits States from authorizing by law sports-gambling schemes. The New Jersey Legislature enacted the 2012 Sports Wagering Act, which authorized casinos and racetracks to offer wagering on sporting events taking place outside New Jersey. […]