This morning the justices issued orders from their private conference last week. They added three new cases to their docket for next fall, but once again did not act on the government’s petition to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for an undocumented pregnant teenager to obtain an abortion.

In the first case granted today, Frank v. Gaos, the justices agreed to weigh in on the use in class-action cases of an ancient legal doctrine known as cy pres. The doctrine – whose name comes from a French phrase that means “as close as possible” – gives courts the power to interpret a will or a charitable gift to implement the giver’s intent when it is impossible to carry out the terms as they are written. In recent years, some courts in the United States have applied the cy pres doctrine to distribute to charity the proceeds of a class-action settlement that have not been claimed by class members, usually because the award to each person is relatively small. Giving the funds to charity, the thinking goes, is better than allowing the defendants to keep the unclaimed funds, which would reduce the deterrent value of the lawsuits.

But others have objected to the use of the cy pres doctrine for class actions, suggesting (among other things) that the settlements should not transfer money to charities and nonprofits that have not been injured by the conduct that sparked the lawsuit. Cy pres settlements of class actions also create potential conflicts of interest for both the lawyers and the judges who select the recipients of the funds, opponents say. One such skeptic may be Chief Justice John Roberts, who in 2013 suggested that the Supreme Court “may need to clarify the limits of the use of” cy pres remedies.

Today the court agreed to do so, in a case challenging the $8.5-million settlement of a class action brought against Google, which alleged that the search engine had violated its users’ privacy by disclosing their search terms to other websites. Approximately $2 million of the settlement went to the lawyers for the plaintiffs, and the named plaintiffs themselves received a few thousand dollars each. But the remainder of the settlement – approximately $5 million – went to groups that work on privacy-related issues, including the World Privacy Forum and the alma maters of the plaintiffs’ lawyers.

Ted Frank, a well-known attorney who frequently challenges class-action settlements, objected to the Google settlement, but the district court approved it over his objections. The U.S. Court of Appeals for the 9th Circuit affirmed, explaining that district courts can approve cy pres settlements of class actions as long as they are “fair, adequate, and free from collusion.” The justices will now review that ruling.

Eight years ago, the Supreme Court ruled that courts could not require class arbitrations unless there was a “contractual basis” to believe that both parties had agreed to such proceedings. In Lamps Plus, Inc. v. Varela, the justices will review a dispute that arose when Frank Varela, a Lamps Plus employee, tried to file a class action in California, alleging that a data breach at the company had broken various state laws. Lamps Plus asked the court to require Varela to arbitrate his claims individually, but a panel of the U.S. Court of Appeals for the 9th Circuit – including Judge Stephen Reinhardt, who died in late March – disagreed. It pointed to language in an arbitration agreement that Varela had signed, which indicated (among other things) that “arbitration shall be in lieu of any and all lawsuits,” to support its conclusion that there was a “contractual basis” for class arbitration.

Lamps Plus asked the Supreme Court to weigh in, telling the justices that the 9th Circuit’s ruling was a “palpable evasion” of their earlier decision. Moreover, it added, the language on which the 9th Circuit relied to find a “contractual basis” for class arbitration is standard fare in many arbitration agreements. If the lower court’s ruling is allowed to stand, the company warned, it will open the door for the 9th Circuit and other courts to “impose class arbitration on parties that never agreed to it.”

And in the third case granted today, Bucklew v. Precythe, the justices will review a challenge by death-row inmate Russell Bucklew to his execution, which had been scheduled for March. The justices put that execution on hold to give them time to consider Bucklew’s petition for review, which they granted today.

Bucklew told the justices that allowing the state to execute him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he suffers from a rare disease that has caused “unstable, blood-filled tumors to grow in his head, neck, and throat.” If he has trouble breathing when the execution begins, Bucklew contends, the tumor in his throat could rupture, filling his mouth and airway with blood – resulting in an execution that would likely be “gruesome and painful far beyond the pain inherent in the process of an ordinary lethal injection.”

Bucklew asked the justices to rule on three different questions related to the state’s plan to execute him by lethal injection, including whether courts should assume that the medical personnel overseeing the execution will be able to manage his condition. Today the justices agreed to take his case and instructed both Bucklew and the state to address a fourth question as well: Whether Bucklew has made the showings that the court’s lethal-injection precedent requires regarding the procedures that would be used to execute him by the alternative method that he has proposed – the gas chamber – and the kind of pain that execution by lethal gas, compared with lethal injection, would cause.

The court once again did not act on Azar v. Garza, the case involving the undocumented teenager who was allowed to obtain an abortion. The justices have considered the government’s petition, which was filed in early November, at 11 conferences this year, with six of those conferences coming since the justices received the lower-court records in the case.

The justices are not scheduled to hold a conference this week; the next conference is scheduled for May 10. Orders from that conference are likely to follow on Monday, May 14.

This post was originally published at Howe on the Court.

Posted in Azar v. Garza, Bucklew v. Precythe, Frank v. Gaos, Lamps Plus Inc. v. Varela, Featured, Merits Cases

Recommended Citation: Amy Howe, Justices add three new cases to next term’s docket, SCOTUSblog (Apr. 30, 2018, 12:29 PM), http://www.scotusblog.com/2018/04/justices-add-three-new-cases-to-next-terms-docket/