© 2012 your bottom line and the supreme court acc-austin july 25, 2013 evan a. young

© 2012

Your Bottom Line and the Supreme Court

ACC-AustinJuly 25, 2013

Evan A. Young

The Caseload

U.S. Courts of Appeals (2012) -- 57,570 1,104 cases per panel

U.S. Supreme Court (OT 2012) -- 78 73 under plenary review 5 summary reversals

The Justices

Case Topics

Employment Discrimination Securities and Corporations Preemption Class Actions Arbitration Intellectual Property Property Rights Jurisdiction Administrative Law Damages

Employment Discrimination

Vance v. Ball State University

"Under the definition of 'supervisor' that we adopt today, the question of supervisor status, when contested, can very often be resolved as a matter of law before trial. . . . The plaintiff will know whether he or she must prove that the employer was negligent or whether the employer will have the burden of proving the elements of the . . . affirmative defense."

"[T]he danger of juror confusion is particularly high where the jury is faced with instructions on alternative theories of liability under which different parties bear the burden of proof."

UT Southwestern Med. Ctr. v. Nassar

With a lower causation standard: "Consider ... the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation."

"Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage."

Securities andCorporations

Gabelli v. SEC

“Unlike the private party who has no reason to suspect fraud, the SEC’s very purpose is to root it out, and it has many legal tools at hand to aid in that pursuit.”

“[T]he SEC as enforcer is a far cry from the defrauded victim the discovery rule evolved to protect.”

Sekhar v. United States

Lawson v. FMR LLC

Ritchie v. Rupe

Preemption

Mutual Pharmaceutical Co. v. Bartlett

"The results were horrific. Sixty to sixty-five percent of the surface of respondent's body deteriorated, was burned off, or turned into an open wound. She spent months in a medically induced coma, underwent 12 eye surgeries, and was tube-fed for a year. She is now severely disfigured, has a number of physical disabilities, and is nearly blind."

Karen Bartlett -- before and after

CBS News

Design-defect claim -- sulindac is an "unreasonably dangerous product"

Addressed by Change in chemical composition

Not allowed under federal law (or chemistry)

Change in warning (might work)

Design-defect claim -- sulindac is an "unreasonably dangerous product"

Addressed by Change in chemical composition

Not allowed under federal law (or chemistry)

Change in warning (might work)

Design-defect claim -- sulindac is an "unreasonably dangerous product"

Addressed by Change in chemical composition

Not allowed under federal law (or chemistry)

Change in warning (might work) Not allowed under federal law

American Trucking Associations v. City of Los Angeles

Gunn v. Minton

“In outlining the contours of this slim category, we do not paint on a blank canvas. Unfortunately, the canvas looks like one that Jackson Pollock got to first.”

Southern Crushed Concrete v. City of Houston

Class Actions

Amgen v. Connecticut Retirement

Comcast v. Behrend

Standard Fire Insurance v. Knowles

Arbitration

Oxford Health Plans v. Sutter

“It is not enough … to show that the [arbitrator] committed an error—or even a serious error.”

“[T]he sole question for us is whether the arbitrator (even arguably) interpreted the parties’ contract, not whether he got its meaning right or wrong.”

“The potential for these mistakes is the price of agreeing to arbitration. … The arbitrator’s construction holds, however good, bad, or ugly.”

“In sum, Oxford chose arbitration, and it must now live with that choice.”

BG Group PLC v. Argentina

American Express Co. v. Italian Colors Restaurant

Rachal v. Reitz

Intellectual Property

Ass’n of Molecular Pathology v. Myriad

Kirtsaeng v. John Wiley & Sons, Inc.

Medtronic v. Boston Scientific Group

In re Continental Tire

Property Rights

Koontz v. St. John’s River Mgmt. Water Dist.

Mt. Holly v. Mt. Holly Gardens Citizens

Kopplow Dev. v. City of San Antonio

Jurisdiction

Kiobel v. Royal Dutch Petroleum

DaimlerChrysler v. Bauman

Walden v. Fiore

Judge Ikuta in dissent below: Courts will have to take jurisdiction if “plaintiffs … only assert that the defendant knew their home state and subsequently engaged in some wrongful act.”

Administrative Law

City of Arlington v. FCC

“[T]he distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a mirage. No matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.”

Chief Justice Roberts’s dissent: “[T]he citizen confronting thousands of pages of regulations—promulgated by an agency directed by Congress to regulate, say, ‘in the public interest’—can perhaps be excused for thinking that it is the agency really doing the legislating.”

Chief Justice Roberts’s dissent: “[W]e do not defer to an agency’s interpretation of an ambiguous provision unless Congress wants us to, and whether Congress wants us to is a question that courts, not agencies, must decide.”

Sebelius v. Auburn Regional Medical Center

Flounder, you [messed] up,

you trusted us. Hey, make the

best of it!

Damages

Strickland v. Medlen

Ethics and Effectiveness for Amici

All Supreme Court cases are "class actions" -- they will govern all of us.

Businesses should want their interests to be considered.

Trade associations and other groups can leverage smaller members.

When you are the party, "recruiting" amici can be especially helpful -- but it must be done within proper boundaries

Ethics and Effectiveness for Amici

Serving the Court

"An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored."

Supreme Court Rule 37.1

Ethics and Effectiveness for Amici

Serving the Client

Amicus briefs are basically discretionary

"Me too" briefs are useless

Amicus briefs opposing certiorari are counterproductive, but supporting certiorari can be extremely valuable

Joint briefs can be effective, and coordinating with others can save time and money

Ethics and Effectiveness for Amici

What an amicus brief should do

Explain broader context -- larger issues at stake

Provide subject-matter expertise or specialized knowledge, and show why this case matters to amicus

Alert court to additional authority or rationales

Be as concise as possible

Ethics and Effectiveness for Amici

What an amicus brief should not do

Replicate the arguments of a party or another amicus

Raise issues that were not preserved by the parties

Obscure the amicus's own interest

Go on and on

Ethics and Effectiveness for Amici

Critical:

Consent or motion for filing -- different for cert-stage and merits

Certification of compliance -- amicus briefs

shall indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person other than the amicus curiae, its members, or its counsel, who made such a monetary contribution. The disclosure shall be made in the first footnote on the first page of text.

Supreme Court Rule 37.6

Ethics and Effectiveness for Amici

Texas Supreme Court (TRAP 11)

Consent and notice not required

Generous with respect to timing and space

"disclose the source of any fee paid or to be paid for preparing the brief," TRAP 11(c)

Especially helpful at the Petition for Review stage

Evan A. Young

evan.young@bakerbotts.com