At its May 10, 2012 Conference, the Court will consider such issues as the First Amendment right to advertise a hedge fund, certifying a class before resolving “merits arguments” relevant to the certification, and whether a new trial is required when scientific evidence is later determined to be unreliable.  This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.

Nicholas & Associates, Inc. v. Central Laborers’ Pension Fund

Docket: 11-1077
Issue(s): (1) Whether the Employee Retirement Income Security Act (ERISA) is the sole basis for determining liability for delinquent contributions to ERISA benefit funds; and (2) whether a state law may be used as an alternative enforcement mechanism to supplement the civil enforcement remedies in ERISA in order to recover ERISA benefit fund contributions from a party that is not liable for the contributions under ERISA.

Certiorari stage documents:

De Aliaga v. Spain

Docket: 11-1070
Issue(s): (1) Whether the Eleventh Circuit’s decision allowing Spain to claim sovereign immunity with regard to private commercial cargo lost from a Spanish ship destroys federal court jurisdiction over all maritime salvage from beneath international waters; (2) whether the Eleventh Circuit’s conclusion contradicts this Court’s decisions in California v. Deep Sea Research, Inc., Compania Espanola De Navegacion Maritima, S. A. v. The Navemar, The Pesaro, The Davis, The Siren, and United States v. Peters; and (3) whether the Eleventh Circuit’s conclusion works to fundamentally change the boundaries of “commercial activity” and the “private transaction exception” within the Foreign Sovereign Immunities Act and conflicts with this Court’s holdings in Republic of Argentina v. Weltover and United States v. Planters Bank of Georgia.

Certiorari stage documents:

Peru v. The Unidentified Shipwrecked Vessel

Docket: 11-1068
Issue(s): (1) Whether the United States applies the customary international law that determines ownership of historical articles found in international waters, including Article 149 of the United Nations Convention on the Law of the Seas and the law of successor states, or imposes a rule directly contrary to the customary international law that awards such treasures to the nation whose warships were carrying them away from their historical home; (2) whether the Foreign Sovereign Immunities Act (FISA) preempts the historical possession rule outlined by this Court in California v. Deep Sea Research, Inc., so that, under the FSIA, foreign sovereigns have greater immunity protections than the United States government; and (3) whether, in an in rem action, international law and comity permit the invocation of sovereign immunity between two foreign nations claiming ownership of the same res.

Certiorari stage documents:

Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel

Docket: 11-1067
Issue(s): (1) Whether the common law doctrine requiring actual possession of property by a foreign sovereign claiming immunity from a federal court adjudication of its right to the property has continued vitality under the Foreign Sovereign Immunities Act; (2) whether a court without subject matter jurisdiction may transfer property to a foreign sovereign which did not have possession of the property and never proved ownership; and (3) whether a court must distinguish vessel and cargo interests to determine if a foreign sovereign’s assertion of immunity applies when the cargo is private but the vessel is public.

Certiorari stage documents:

Bulldog Investors General Partnership v. Galvin

Docket: 11-954
Issue(s): (1) Whether a state ban on speech by an issuer of unregistered securities to members of the public based upon their financial status violates the First Amendment, where the speech is concededly truthful and non-misleading, and where the state characterizes the speech ban as a “disclosure rule” to further an objective that federal law does not permit; and (2) whether the Due Process Clause of the Fourteenth Amendment permits a forum state to exercise personal jurisdiction over a non-resident business solely because the business operated a website accessible from the state (and from any other location in the world) and sent a single concededly truthful and non-misleading e-mail responding to a resident’s inquiry, when the business did not enter (and, based upon these communications, could not have entered) into a transaction with the resident.

Certiorari stage documents:

Comcast v. Behrend (Granted )

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the respondents in this case.
Docket: 11-864
Issue(s): Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

Certiorari stage documents:

Robbins v. Texas

Docket: 11-777
Issue(s): Whether federal due process requires that a criminal defendant be afforded a new trial upon the revelation that scientific evidence necessary to his conviction was or has become unreliable as a matter of law or scientific fact.

Certiorari stage documents:


The following petition has been re-listed for the conference of May 10.  If any other paid petitions are redistributed for this conference, we will add them below as soon as their redistribution is noted on the docket.

Coleman v. Johnson (Granted )

Docket: 11-1053
Issue(s): (1) Whether the court of appeals’ grant of habeas relief based on a finding that the Pennsylvania courts misapplied Pennsylvania law should be reversed given that it conflicts with this Court’s holdings that it is not the province of a federal habeas court to examine state court application of state law and that only noncompliance with clearly-established federal law will render a state’s criminal judgment susceptible to collateral attack in federal court; (2) whether the court of appeals’ refusal to credit factual inferences favorable to the prosecution in connection with its Jackson v. Virginia analysis due to its subjective view that those inferences do not “more likely than not flow from” the trial evidence should be reversed given that it conflicts with this Court's holdings that a federal habeas court conducting a Jackson review must view the evidence in the light most favorable to the prosecution, presume that the jury resolved any conflicting factual inferences in favor of the prosecution, and defer to that resolution; (3) whether the court of appeals’ determination, which patently relies upon its own subjective conclusions regarding witness credibility and the proper weight to be accorded the record evidence, should be reversed given that it contravenes this Court’s repeated admonitions that a federal habeas court conducting a Jackson review is strictly forbidden from substituting its judgment for that of the jury on weight and credibility issues; (4) whether the court of appeals’ determination, which relies upon a definition of accomplice liability that conflicts with Pennsylvania law, should be reversed given this Court’s holdings that a federal habeas court engaged in a Jackson analysis must apply the substantive elements of the criminal offense as defined by state law; and (5) whether the court of appeals’ de facto finding that the state courts’ conviction was based on an unreasonable determination of the facts in light of the evidence presented should be reversed given that it fails to acknowledge or address the presumption of correctness that must be afforded the factual inferences drawn by the state courts pursuant to 28 U.S.C. § 2254(e)(l) and therefore conflicts with this Court’s holdings that the presumption of correctness afforded state court factual findings cannot be overridden absent clear and convincing contrary evidence.

Certiorari stage documents:

Posted in Cases in the Pipeline

Recommended Citation: Matthew Bush, Petitions to watch | Conference of May 10, 2012, SCOTUSblog (May. 7, 2012, 3:20 PM),