Yesterday’s Grants in No. 08-645, Abbott v. Abbott, and No. 08-1200, Jerman v. Carlisle

By Amy Howe
on Jun 30, 2009 at 10:04 am

We represent the petitioners in two cases that were granted yesterday, No. 08-645, Abbott v. Abbott, and No. 08-1200, Jerman v. Carlisle. 

In Abbott, the Court will construe the Hague Convention on the Civil Aspects of International Child Abduction, to which the United States is a party.  Under the Convention, a parent whose child has been abducted has the right to have his child returned to the child’s country of habitual residence if the child has been removed in violation of his rights of custody.  The Convention further defines “rights of custody” to include “the right to determine the child’s place of residence.”  At issue in this case is whether a ne exeat clause – which prohibits one parent from removing a child from the country without the other parent’s consent – confers a “right of custody” for purposes of the Hague Convention.  The Fifth Circuit joined the Second, Fourth, and Ninth Circuits in holding that the ne exeat clause does not constitute a right of custody; by contrast, the Eleventh Circuit and the majority of foreign courts which have considered the issue have held that it does.  Judge Sonia Sotomayor dissented from the Second Circuit’s decision on the issue in Croll v. Croll; she would also have held that the ne exeat clause does confer a right of custody.

We filed the petition for certiorari in November 2008; in January 2009, the Court invited the Solicitor General to file a brief expressing the views of the United States.  In late May, the Solicitor General filed a brief urging the Court to grant certiorari and reverse.  Our co-counsel in the case is Adair Dyer of Austin, Texas.  We received help along the way from five students from the Stanford Law School Supreme Court Litigation Clinic – David Schwartz, JP Schnapper-Casteras, Dan Matro, Rakesh Kilaru, and Martine Cicconi – as well as three students from our Supreme Court Litigation Class at Harvard Law School – Andrew Corkhill, Eric Nguyen, and Jane Wang.

In Jerman, the Court will consider whether a debt collector’s legal error qualifies for the bona fide error defense under the Fair Debt Collection Practices Act, which immunizes debt collectors from liability if they can prove that “the violation was not intentaional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”  Three circuits – the Second, Eighth, and Ninth Circuits – have held that the Fair Debt Collection Practices Act does not apply to violations that result from legal mistakes; in so holding, they relied on the similarity between the FDCPA’s bona fide error provision and a “nearly identical” provision of the Truth in Lending Act, which courts have consistently declined to construe as extending to legal errors.  In this case, the Sixth Circuit joined the Tenth Circuit in reaching the contrary result.  Our co-counsel in the case are Ed Icove of Cleveland and Steve Felson of Cincinnati.  Harvard’s Andrew Corkhill, Jane Wang, and Eric Nguyen worked on this case as well.