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Wednesday round-up

Yesterday the Court delivered opinions in two cases and heard oral argument in two more. The Court will sit again this morning to hear oral argument in another pair of cases.

Both of yesterday’s decisions received substantial media coverage. In Matrixx Initiatives, Inc. v. Siracusano, the Court held that a drug company’s investors, when suing for securities fraud, may rely on the company’s failure to disclose reports regarding the adverse effects of one of its drugs, even when the number of reports is not statistically significant. The WSJ Law Blog describes the unanimous decision as a “rare win” for securities-fraud plaintiffs. Indeed, Adam Liptak of the New York Times reports that the decision may be especially frustrating for businesses because it “reject[ed] the proposed categorical rule in favor of a contextual inquiry,” “provid[ing] only limited guidance to companies and lower courts.” NPR, the Christian Science Monitor, USA Today, JURIST, ABA Journal, and Bloomberg all have additional coverage of the decision.

In the other case decided yesterday, Kasten v. Saint-Gobain Performance Plastics Corp., the Court held that for purposes of the anti-retaliation provision of the Fair Labor Standards Act, the term “filed any complaint” includes oral complaints in addition to written ones. The New York Times, ABA Journal, and JURIST have reports on the decision, and at PrawfsBlawg, Rick Hills discusses its implications for the interpretive canon known as the “rule of lenity.”

Discussing both cases, the Washington Post’s Bob Barnes writes that “Tuesday’s decisions show [that] the court,” which is often described as pro-business, “is not always predictable.” He observes that Kasten is the Court’s third retaliation case this Term, and “[i]n all three, the court sided with the employee.” David Savage of the Los Angeles Times agrees, writing that “[t]he decisions continue a trend of late in which the high court has confounded its critics by siding with workers and plaintiffs in business cases. The U.S. Chamber of Commerce has been on the winning side in only one case decided this year, while suffering five losses.”

The National Law Journal has a report on yesterday’s oral argument in an attorneys’ fees case, Fox v. Vice, which Amy previewed for this blog. The argument had “no easily declared winner,” writes the Journal’s Marcia Coyle. JURIST has a capsule report of both of the arguments yesterday. Meanwhile, NPR and SCOTUSblog have previews for this morning’s arguments in Turner v. Rogers and J.D.B. v. North Carolina. The Associated Press (via the Washington Post) also previews Turner, a case concerning the right to counsel for civil contempt cases. And Youth Today, the Charlotte Observer, McClatchy Newspapers (via the Miami Herald), and Frank Vandervort and John Seber in the Detroit Free-Press (in an opinion piece) preview J.D.B., a case about Miranda rights for youth.

Looking further ahead, several news outlets are previewing next Tuesday’s argument in the class certification case Wal-Mart v. Dukes. Reuters summarizes the legal issues in play in the case and also analyzes “some scenarios of what could happen next,” including a possible settlement. (Reuters (via the Los Angeles Times) also provides “some key facts and allegations that have emerged during the 10-year-old lawsuit.”) Bloomberg’s Greg Stohr notes that the case “marks the court’s first look in 12 years at the standards for certifying a class action.” The Washington Legal Foundation offers video of a program it hosted “to preview the March 29 oral argument and offer analysis on what aspects of the case will attract the Justices’ focus.”

Another Court-related story receiving significant attention is the announcement that Justice Thomas’s wife Ginni has joined the Daily Caller, a conservative news website, as a special correspondent. Politico, TPM (also here), National Journal, the Daily Mail, the Washington Post’s Reliable Source blog, Yahoo! News’s Cutline blog, the New York Times’s Caucus blog, FishbowlDC, the Daily Beast, Slate’s David Weigel, Salon, and Business Insider all have the details.


  • SCOTUSblog, Fox News, the Associated Press (via the Washington Post), (Virginia), and the WSJ Law Blog all report on Virginia’s latest brief in its challenge to the health care reform law, in which it reiterates its request that the Court hear the case now rather than waiting for a ruling from the Fourth Circuit.
  • Politico reports that, with Monday’s denial of certiorari in Clearing House Association LLC v. Bloomberg LP (see yesterday’s round-up), “the Federal Reserve is preparing to disclose what financial institutions borrowed from the central bank’s emergency ‘discount window’ during the worst of the credit crisis in 2008.”
  • At Brookings, Russell Wheeler argues that recently proposed ethics reforms for the Supreme Court “rest on basic factual misunderstandings about federal judicial ethics regulation, could create a ‘cure-worse-than-the-disease’ situation, and are probably unconstitutional in part.”
  • At ACSblog, Professor Anthony Renzo criticizes the Court’s decision in Snyder v. Phelps for “limiting the scope of its ruling to the funeral picketing” and ignoring the Westboro church’s online account of Snyder’s funeral.
  • At Crime & Consequences, Kent Scheidegger is “still waiting on Cullen v. Pinholster, argued November 9.” Scheidegger describes the case as  a challenge to “the remarkable holding of the Ninth Circuit that a federal court can consider evidence never presented to the state court in deciding whether a state court decision is ‘reasonable’ within the meaning of 28 U.S.C. §2254(d)(1).”
  • The Consumerist, FMQB, and Music Week have further coverage of the denial of certiorari in a dispute between Eminem’s production companies and his record label (which Nabiha covered in yesterday’s round-up).
  • George Mason University School of Law is launching a Supreme Court Clinic in partnership with the law firm Wiley Rein. (Thanks to How Appealing’s Howard Bashman for the link.)
  • In an essay at the Huffington Post, John Paul Rollert reflects on Emily Bazelon’s recent New York Times Magazine article on Justice Alito (covered in Monday’s round-up) and returns to the question: “[W]hat exactly does President Obama mean by empathy?”
  • Finally, Eugene Volokh poses a puzzle at the Volokh Conspiracy: “Who has played a role in argued Supreme Court cases both as a lawyer for a party and as the lead party in a different case (in a personal capacity)?”

Recommended Citation: Adam Chandler, Wednesday round-up, SCOTUSblog (Mar. 23, 2011, 8:24 AM),