On Monday, the Justices will formally be back at work and will hold a Conference at which they will select cases from the summer lists for review during the October 2012 Term.  Our previous lists of “Petitions to Watch” for this Conference can be found here and here.  The petitions distributed for the Court’s review at this Conference include such issues as the constitutionality of the federal Defense of Marriage Act, the patent exhaustion doctrine applied to patented seeds and self-replicating technologies, California’s definition of marriage and the Equal Protection Clause, reimbursement under the Medicare Secondary Payer Act, and class action lawsuits under the Securities Litigation Uniform Standards Act.

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.

Bowman v. Monsanto Co. (Granted )

Docket: 11-796
Issue(s): Whether the Federal Circuit erred by (1) refusing to find patent exhaustion – a doctrine which eliminates the right to control or prohibit the use of an invention after an authorized sale – in patented seeds that were sold for planting; and (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies.

Certiorari stage documents:

CVSG Information:

Hadden v. United States

Docket: 11-1197
Issue(s): Whether the government is entitled to full reimbursement under the Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b), when a beneficiary compromises a tort or other claim and recovers a reduced amount, as the court of appeals held here, or whether the government, like its beneficiary, is entitled to only a proportionate recovery, as the Eleventh Circuit has held.

Certiorari stage documents:

Rubashkin v. United States

Docket: 11-1203
Issue(s): (1) Whether Federal Rule of Criminal Procedure 33 requires a criminal defendant with newly discovered evidence that goes not to guilt or innocence but to the fundamental fairness of his criminal trial – here, that the trial judge should have been recused under 28 U.S.C. § 455(a) – to show nonetheless that the new evidence would probably lead to his acquittal; and (2) whether a sentence is unreasonable when a district court fails to consider and explain on the record, as required by this Court’s precedents, its basis for rejecting a defendant’s nonfrivolous argument for a below-Guidelines sentence – resulting in, here, a twenty-seven-year sentence for a first-time, nonviolent offender that is significantly greater than sentences for similarly situated individuals.

Certiorari stage documents:

Elizondo v. City of Garland

Docket: 11-1375
Issue(s): (1) Whether, when an officer precipitates a violent confrontation ending in his use of force, his own conduct making that force necessary should be considered among the totality of circumstances determining whether the force was constitutionally excessive; and (2) whether an individual’s obvious mental illness reduces the government’s justification for using force against him during an encounter with police.

Certiorari stage documents:

Wyoming v. Dept. of Agriculture

Docket: 11-1378
Issue(s): (1) Whether, under the Wilderness Act of 1964, which provides that only Congress may designate wilderness areas, the United States Forest Service usurped Congress’s authority to designate wilderness areas; (2) whether the Forest Service exceeded its authority by promulgating the Roadless Rule without following the forest planning process set forth in the National Forest Management Act; and (3) whether the Forest Service violated the National Environmental Policy Act by predetermining the outcome of the environmental analysis, not conducting any site-specific analysis, and not preparing a supplemental environmental analysis.

Certiorari stage documents:

Colorado Mining Association v. Dept. of Agriculture

Docket: 11-1384
Issue(s): Whether the Tenth Circuit erred in failing to determine that the Secretary of Agriculture’s designation of 58.5 million acres of land as Roadless was a de facto wilderness designation, which impermissibly intrudes into Congress’s exclusive authority under the Wilderness Act to permanently designate National Forest System lands as wilderness.

Certiorari stage documents:

Farmers Insurance Company of Washington v. Moratti

Docket: 11-1474
Issue(s): Whether Washington state courts' presumptions – that an insurer’s bad faith results in harm to a policyholder, and that damages are measured by the full amount of a covenant judgment – violate the Due Process Clause of the Fourteenth Amendment.

Certiorari stage documents:

KeyCorp v. Sollitt

Docket: 11-1479
Issue(s): Whether a case under the Edge Act, 12 U.S.C. § 632, “arises” out of international or foreign banking transactions when the significant legal issues in the case are directly related to such transactions.

Certiorari stage documents:

Carter v. Louisiana

Docket: 11-1484
Issue(s): Whether the Court should reexamine its “death qualification” framework articulated in Witherspoon v. Illinois and Wainwright v. Witt because the Court announced that framework decades ago without any consideration of, or foundation in, the Framers' intent in protecting a defendant’s right to an “impartial jury” in the Sixth Amendment.

Certiorari stage documents:

Lawson v. FMR LLC (Granted )

Docket: 12-3
Issue(s): Whether an employee of a privately held contractor or subcontractor of a public company is protected from retaliation by Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A.

Certiorari stage documents:

Arzoumanian v. Munchener Ruckversicherungs-Gesellschaft Aktiengesellschaft AG

Docket: 12-9
Issue(s): Whether a state law concerning traditional state responsibilities, such as extending the statute of limitations and providing forum access for insurance claims, can be invalidated under the foreign affairs doctrine in the absence of a conflict with federal policy or an indication of federal intent to preempt the field.

Certiorari stage documents:

Brewer v. Diaz

Docket: 12-23
Issue(s): Whether the Ninth Circuit Court of Appeals ignored this Court’s precedent and erred in holding that Arizona Revised Statutes (A.R.S.) Section 38-651(O) (Section O) violates the Equal Protection Clause by limiting healthcare benefits to state employees’ spouses and dependents – and thus not extending such benefits to state employees’ domestic partners – given that a) Section O is facially neutral and there is no evidence that the Legislature intended to discriminate based on sexual orientation; b) Section O furthers the State’s interests in promoting marriage while also eliminating the additional expense and administrative burdens involved in providing healthcare benefits to state employees’ domestic partners; and c) the court’s reason for finding that Section O discriminates against gay and lesbian state employees was that Arizona prohibits same-sex marriage.

Certiorari stage documents:

City of Des Moines v. Kragnes

Docket: 12-37
Issue(s): Whether a court in a class action, consistent with the Due Process Clause, can certify a plaintiff class consisting of all payers of a municipal franchise fee, and refuse to allow class members to opt out, when the lawsuit seeks a class-wide refund that will necessarily have a disparate and negative impact on those class members who pay municipal property taxes.

Certiorari stage documents:

Windsor v. United States

Docket: 12-63
Issue(s): Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, which defines the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,” deprives same-sex couples who are lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States.

Certiorari stage documents:

Chadbourne & Parke LLP v. Troice (Granted )

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the respondents in this case.
Docket: 12-79
Issue(s): (1) Whether the Securities Litigation Uniform Standards Act (SLUSA) precludes a state-law class action alleging a scheme of fraud that involves misrepresentations about transactions in SLUSA-covered securities; and (2) whether SLUSA precludes class actions asserting that defendants aided and abetted SLUSA-covered securities fraud when the defendants themselves did not make misrepresentations about the purchase or sale of SLUSA-covered securities.

Certiorari stage documents:

Willis of Colorado Inc. v. Troice (Granted )

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the respondents in this case.
Docket: 12-86
Issue(s): Whether a covered state law class action complaint that unquestionably alleges “a” misrepresentation “in connection with” the purchase or sale of a security covered by the Securities Litigation Uniform Standards Act nonetheless can escape the application of SLUSA by including other allegations that are farther removed from a covered securities transaction.

Certiorari stage documents:

Proskauer Rose LLP v. Troice (Granted )

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the respondents in this case.
Docket: 12-88
Issue(s): (1) Whether the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”), 15 U.S.C. §§ 77p(b), 78bb(f)(1), prohibits private class actions based on state law only where the alleged purchase or sale of a covered security is “more than tangentially related” to the “heart, crux or gravamen” of the alleged fraud; and (2) whether the SLUSA precludes a class action in which the defendant is sued for aiding and abetting fraud, but a non-party, rather than the defendant, made the only alleged misrepresentation in connection with a covered securities transaction.

Certiorari stage documents:

American Express Travel Related Services, Inc. v. Sidamon-Eristoff

Docket: 12-105
Issue(s): (1) Whether a state violates due process by using its abandoned-property laws to confiscate the proceeds of private enterprise under an arbitrary and unreasonable presumption of “abandonment” that is shown to be false and serves none of the traditional purposes of escheat; (2) whether retroactive application of a shortened abandonment period, requiring immediate transfer to the state of the proceeds of transactions entered into years ago, effects an unconstitutional taking.

Certiorari stage documents:

Merrill Lynch v. McReynolds

Docket: 12-113
Issue(s): (1) Whether the Seventh Circuit’s certification of a disparate impact injunction class conflicts with this Court’s decision in Wal-Mart Stores, Inc. v. Dukes, which rejected certification of a nationwide class that, like this one, asserted disparate impact claims based on employment policies requiring the exercise of managerial discretion; and (2) whether the Seventh Circuit erred in holding, in conflict with other circuits, that Federal Rule of Civil Procedure Rule 23(c)(4) permits class certification of a discrete sub-issue when the claim as a whole does not satisfy Rule 23(b) and hundreds of individual trials would be needed to determine liability.

Certiorari stage documents:

Hollingsworth v. Perry (Granted )

Note: Tejinder Singh of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in this case.
Docket: 12-144
Issue(s): (1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case.

Certiorari stage documents:

 

 

 

Posted in Cases in the Pipeline

Recommended Citation: Ben Cheng, Petitions to watch | Conference of September 24, 2012, SCOTUSblog (Sep. 22, 2012, 11:51 PM), http://www.scotusblog.com/2012/09/petitions-to-watch-conference-of-september-24-2012-3/