Petition of the day

By on Mar 26, 2015 at 10:20 pm

The petition of the day is:


Issue: Whether the dormant commerce clause permits a local law that directly conscripts out-of-state manufacturers to enter the locality and to assume all costs and responsibility for collecting and disposing of unused medicines from local residents, for the avowed purpose of shifting the costs of this traditional government function from local taxpayers and consumers to foreign producers and consumers.

spiderman string shooterIt’s patent day at the Court on the last day of March, with a pair of arguments in patent cases. First up is Kimble v. Marvel Enterprises. You should be forgiven if the style of the case leads you to expect a copyright or trademark case involving one of Marvel’s characters. But no. This is a patent case, involving a patent for a toy, which could be (and has been) used for a Spider-Man toy that allows children to shoot foam string in the way that Spider-Man might shoot a web.

The parties fell into a dispute when Marvel (the deep-pocket defendant) made such a toy, having previously met with Kimble (the inventor). After several years of litigation, the parties settled. In the settlement, Kimble conveyed the patent to Marvel, in return for royalties of three percent of product sales. Perhaps because Marvel is more accustomed to litigation about copyright and trademark issues, Marvel’s counsel (like Kimble’s) apparently was unaware of the Supreme Court’s 1964 decision in Brulotte v. Thys Co., holding that a patent-holder cannot collect royalties after the patent expires.

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An opinion on opinions

By on Mar 26, 2015 at 10:55 am

When the curtain rose for oral argument in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, on November 3, everyone thought the issue was whether a statement of opinion that turns out to be false gives rise to liability when it is included in a registration statement in connection with a stock offering under the Securities Act of 1933. The defendant Omnicare argued that liability could attach only if the opinion was not genuinely held by the speaker at the time. The plaintiff pension fund argued that falsity was enough because the 1933 Act creates a scheme of absolute liability that does not require any showing of scienter on the part of the registrant.

When the curtain came down following the argument, I predicted that the court would find a way to affirm the holding by the Sixth Circuit that an opinion can be a fact for 33 Act purposes, and that scienter is not required, but that the Court would find some way to hold that the particular statements at issue in Omnicare were voluntary statements of opinion that should be viewed as outside the ambit of strict liability.

In its decision issued on Tuesday, March 24, the Court appears to have decided another case entirely, holding (1) that opinions themselves are not facts and cannot provide the basis for 33 Act liability as such (unless not genuinely held by the speaker at the time), but (2) that a statement of opinion is actionable as an omission if it implies that the speaker had a reasonable factual basis for the opinion when the speaker had no such grounds for the statement. (Then again, it is not up to the parties to define the legal issues.) The Court’s opinion was delivered by Justice Elena Kagan, and concurrences were filed by Justice Antonin Scalia and Justice Clarence Thomas. In short, the decision was virtually unanimous. Continue reading »

Thursday round-up

By on Mar 26, 2015 at 6:05 am

Yesterday the Court heard oral arguments in the challenge to an EPA rule that restricts the release of mercury and other pollutants from power plants.  Coverage comes from Lyle Denniston for this blog, Greg Stohr of Bloomberg News, Jeremy P. Jacobs of Greenwire, Tony Mauro of the Supreme Court Brief (subscription required) and Richard Wolf of USA Today.  Commentary comes from Michael Bobelian of Forbes and  the editorial boards of The Washington Post, Los Angeles Times, the (Eugene, Or.) Register-Guard, and the San Francisco Chronicle.

The Court issued two opinions in argued cases yesterday.  In the Alabama redistricting cases, it sent a Republican plan for state legislative districts back to the lower court for further consideration.  Rick Hasen covered the opinion for this blog, with other coverage coming from Greg Stohr of Bloomberg News, Richard Wolf of USA Today (who also has a separate story about Justice Clarence Thomas’s opinion in the case), and Jess Bravin of The Wall Street Journal.  Commentary comes from Chris Kieser of the Pacific Legal Foundation’s Liberty Blog, Steven Schwinn at the Constitutional Law Prof Blog, Rick Hills at PrawfsBlawg, and Kent Scheidegger at Crime and Consequences. Continue reading »

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Petition of the day

By on Mar 25, 2015 at 10:21 pm

The petition of the day is:


Issue: Whether the court of appeals erred in holding that liability under the Fair Debt Collection Practices Act may be premised on the filing of a proof of claim in bankruptcy and determined using a least-sophisticated consumer standard.


Dissatisfied with every argument made to it, a Supreme Court majority on Wednesday on its own fashioned a new way to test complaints that employers are discriminating against workers who become pregnant.  The result, in Young v. United Parcel Service, was a kind of hybrid remedy, judging intentional bias on the one hand and harmful impact on women workers on the other.

It was clear, though, that female workers did not receive legal protection as strong as their advocates sought, but neither did employers get a free pass from claims of pregnancy bias.  The six-to-three decision thus looked like a compromise, landing somewhere in the middle.

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Each time the Environmental Protection Agency is before the Supreme Court these days, it gets a reminder that it is not likely to get the benefit of the doubt that it used its regulatory powers entirely legally.  It did seem, as the ninety-minute argument on Michigan v. EPA and two companion cases (National Mining Association v. EPA and Utility Air Regulatory Group v. EPA) unfolded on Wednesday, that any gaps in the record it makes may count heavily against it; good intentions, if it had them, won’t count.

The agency’s decision to regulate the emissions of mercury and other poisonous chemicals from the stacks of electricity-generating power plants that burn coal came out of the argument with clear support from only three Justices and possibly a fourth, offset by clear opposition from two and probably three others.  That put into play the votes of Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy.

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It is easy to read the Supreme Court’s five-to-four decision in Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama as a mostly inconsequential case giving a small, and perhaps only temporary, victory for minority voters in a dispute over the redrawing of Alabama’s legislative districts after the 2010 census. Indeed, although the Supreme Court sent this “racial gerrymandering” case back for a wide and broad rehearing before a three-judge court, Alabama will be free to junk its plan and start over with one that may achieve the same political ends and keep it out of legal trouble. But Justice Antonin Scalia in his dissent sees the majority as issuing “a sweeping holding that will have profound implications for the constitutional ideal of one person, one vote, for the future of the Voting Rights Act of 1965, and for the primacy of the State in managing its own elections.” Time will tell if Justice Scalia’s warning against the implications of what he termed a “fantastical” majority opinion is more than typical Scalian hyperbole. And we may know soon enough as these issues get addressed in racial gerrymandering cases from Virginia, North Carolina and elsewhere. Continue reading »

The Court apparently designed its decision Tuesday in B&B Hardware v. Hargis Industries to answer as narrow a question as possible and I think most readers of this blog will come away convinced that the opinion was a success, at least by that measure. The case presents a question of issue preclusion – the relation between a contested registration proceeding before the Patent and Trademark Office’s Trademark Trial and Appeal Board (commonly called the TTAB) and an infringement proceeding in a federal district court.

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