At its Conference on February 28, 2014, the Court will consider petitions seeking review of issues such as “trade or business” status under ERISA, the time limitation in Section 13 of the Securities Act, whether state wage rates supersede collectively-bargained wage rates, and whether campaign contributions are bribery absent an “explicit” quid pro quo.

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.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.


Issue: (1) Whether the First Circuit erred by holding (contrary to decisions of the Seventh and D.C. Circuits) that “trade or business” status under ERISA should be governed by a novel, multi-factor “investment plus-like” test rather than by this Court’s decisions defining “trade or business” status for purposes of Section 162(a) of the Internal Revenue Code; and (2) whether the First Circuit erred by holding, contrary to Whipple v. Commissioner that an entity that solely makes investments and manages the businesses in which it has invested is a “trade or business.”



Issue: Whether the filing of a putative class action serves, under American Pipe & Construction Co. v. Utah, to satisfy the three year time limitation in § 13 of the Securities Act with respect to the claims of putative class members.



Issue: (1) Whether, in the context of a First-Amendment-protected contribution to a judicial campaign, the McCormick v. United States holding that campaign contributions cannot constitute bribery unless “the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act” mean “explicit,” or if not an explicit agreement, a certain quality and quantity of evidence is needed to permit a jury to only infer that an explicit agreement existed; (2) whether this standard requires proof of an “explicit” quid pro quo promise or undertaking in the sense of actually being communicated expressly, as various circuits have stated; or whether there can be a conviction based instead only on the jury’s inference that there was an unstated, inferred and implied agreement, a state of mind, connecting the contribution and the corrupt official action; (3) whether a public official may be prosecuted for the receipt of lawful campaign contributions in the absence of sufficient evidence of an “explicit” quid pro quo connection between those lawful campaign contributions and some official act; and (4) whether there must be there be a specific link with or connection between the giving of a campaign contribution from a donor to a public official for use in a political campaign and the latter’s performance of a specific and particular official act in order to sustain an Honest Services statute conviction and avoid a First Amendment concern.



Issue: Whether New York prevailing wage rates are minimum labor standards under Metropolitan Life Insurance Co. v. Massachusetts that supersede collectively bargained lower wage rates.



Issue: Whether the court of appeals exceeded its authority to grant a writ of habeas corpus when it completely disregarded and ignored this Court’s well-established precedent of Woodford v. Visciotti and its progeny, by finding a state court’s application of Beck v. Alabama contrary to United States Supreme Court precedent, although the state court expressly recognized, cited and applied the appropriate federal standard of review but its analysis was not a model of clarity; and (2) whether the decision of the court of appeals finding error under Beck based solely on speculative and non-existent evidence is so clearly erroneous, and in conflict with other lower federal courts, that this Court should, if not grant plenary review, at least grant certiorari, vacate the court of appeals’ decision, and remand with instructions to deny habeas corpus relief.



Issue: Whether courts deciding qualified immunity in Fourth Amendment cases should consider the factual reasonableness of the search or seizure when applying the second, “clearly established” prong of the test.



Issue: Whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.



Issue: (1) Whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental house is a preempted "regulation of immigration"; (2) whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is impliedly field preempted; (3) whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is impliedly conflict preempted; and (4) whether a local ordinance prohibiting the employment of unauthorized aliens is impliedly conflict preempted.



Issue: Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.



Issue: (1) Whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is a preempted "regulation of immigration"; (2) whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is impliedly field preempted; and (3) whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is impliedly conflict preempted.



Issue: Whether the Sixth Circuit violated the Antiterrorism and Effective Death Penalty Act by holding that “some form” of Waller v. Georgia's specific four-part test was clearly established for partial courtroom closures and that a state court could unreasonably apply the modified test in the partial-closure context.



Issue: (1) Whether the First Amendment permits civil courts to retroactively impose a “trust” on church property based on church canons that were never embodied in any secular instrument of property ownership and did not comply with state law at the time of their adoption; (2) whether the Contracts Clause permits civil courts resolving church property disputes to apply changes to state statutory law retroactively.



Issue: Whether, for purposes of a claim under Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, a plaintiff may plead that a statement of opinion was “untrue” merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or must the plaintiff also allege that the statement was subjectively false – requiring allegations that the speaker’s actual opinion was different from the one expressed – as the Second, Third, and Ninth Circuits have held.



Issue: Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act.



Issue: Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of February 28, SCOTUSblog (Feb. 24, 2014, 10:36 PM),