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Mission Product Holdings Inc. v. Tempnology, LLC

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
17-1657	1st Cir.	Feb 20, 2019 Tr.Aud.	TBD	TBD	TBD	OT 2018

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether, under Section 365 of the Bankruptcy Code, a debtor-licensor’s “rejection” of a license agreement—which “constitutes a breach of such contract,” 11 U.S.C. § 365(g)—terminates rights of the licensee that would survive the licensor’s breach under applicable non-bankruptcy law.

SCOTUSblog Coverage

Argument analysis: Meandering argument suggests justices likely to narrow bankrupts’ power to rescind licenses in bankruptcy (Ronald Mann)
OT2018 #19: "Fake Mootness" (First Mondays)
Argument preview: Justices to examine rejection of contracts in bankruptcy (Ronald Mann)
OT2018 #5: "Arbitration Nation" (First Mondays)
Justices add three new cases to this term’s docket (Amy Howe)
Petition of the day (Aurora Barnes)

Date	Proceedings and Orders (key to color coding)
Mar 27 2018	Application (17A1060) to extend the time to file a petition for a writ of certiorari from April 12, 2018 to June 11, 2018, submitted to Justice Breyer.
Apr 02 2018	Application (17A1060) granted by Justice Breyer extending the time to file until June 11, 2018.
Jun 11 2018	Petition for a writ of certiorari filed. (Response due July 12, 2018)
Jun 28 2018	Waiver of right of respondent Tempnology, LLC, n/k/a Old Cold LLC to respond filed.
Jul 03 2018	DISTRIBUTED for Conference of 9/24/2018.
Jul 09 2018	Response Requested. (Due August 8, 2018)
Jul 11 2018	Brief amicus curiae of The International Trademark Association filed.
Jul 20 2018	Motion to extend the time to file a response from August 8, 2018 to September 7, 2018, submitted to The Clerk.
Jul 24 2018	Motion to extend the time to file a response is granted and the time is extended to and including September 7, 2018.
Aug 08 2018	Brief amici curiae of Law Professors filed.
Sep 07 2018	Brief of respondent Tempnology, LLC, n/k/a Old Cold LLC in opposition filed.
Sep 25 2018	Reply of petitioner Mission Product Holdings, Inc. filed.
Sep 26 2018	DISTRIBUTED for Conference of 10/12/2018.
Oct 22 2018	DISTRIBUTED for Conference of 10/26/2018.
Oct 25 2018	Letter of October 23, 2018 from counsel for respondent received. (Distributed)
Oct 26 2018	Letter of October 25, 2018 from counsel for petitioner received. (Distributed)
Oct 26 2018	Petition GRANTED limited to Question 1 presented by the petition.
Dec 10 2018	Brief of petitioner Mission Product Holdings, Inc. filed.
Dec 10 2018	Joint appendix (2 volumes) filed.
Dec 12 2018	Brief amicus curiae of Intellectual Property Owners Association in support of neither party filed.
Dec 17 2018	Brief amicus curiae of United States filed.
Dec 17 2018	Brief amici curiae of Law Professors filed.
Dec 17 2018	Brief amicus curiae of New York Intellectual Property Law Association filed.
Dec 17 2018	Brief amicus curiae of American Intellectual Property Law Association in support of neither party filed.
Dec 17 2018	Brief amicus curiae of The International Trademark Association filed.
Dec 21 2018	SET FOR ARGUMENT on Wednesday, February 20, 2019.
Dec 21 2018	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
Jan 09 2019	Brief of respondent Tempnology, LLC, n/k/a Old Cold LLC filed.
Jan 11 2019	Record requested from the U.S.C.A. 1st Circuit.
Jan 15 2019	CIRCULATED
Jan 18 2019	Record from the U.S.C.A. 1st Circuit is electronic and located on PACER, with the exception of one envelop containing the Joint Appendix.
Jan 22 2019	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
Feb 08 2019	Reply of petitioner Mission Product Holdings, Inc. filed. (Distributed)
Feb 20 2019	Argued. For petitioner: Danielle Spinelli, Washington, D. C.; and Zachary D. Tripp, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondent: Douglas Hallward-Driemeier, Washington, D. C.

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This Week at the Court
The Supreme Court released orders from the April 18 conference on Monday; the justices agreed to decide Bostock v. Clayton County, Georgia, consolidated with Altitude Express Inc. v. Zarda, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd., and Barton v. Barr. The justices also called for the views of the U.S. solicitor general in Putnam Investments, LLC v. Brotherston.
On Tuesday, the justices dismissed Emulex Corp. v. Varjabedian as improvidently granted.
On Wednesday, the justices released their opinion in Lamps Plus Inc. v. Varela.
On Monday, the justices heard oral argument in Food Marketing Institute v. Argus Leader Media and Fort Bend County, Texas v. Davis.
On Tuesday morning, the justices heard oral argument in Department of Commerce v. New York. On Tuesday afternoon, they heard argument in Mitchell v. Wisconsin and Rehaif v. United States.
On Wednesday, the justices heard oral argument in Quarles v. United States and Taggart v. Lorenzen.
On Friday, the justices meet for their April 26 conference; John Elwood compiles the petitions relisted for this conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
see all this term’s cases »
Recent Decisions
- Lamps Plus Inc. v. Varela Under the Federal Arbitration Act, an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration.
- Biestek v. Berryhill A vocational expert’s refusal to provide private market-survey data during a Social Security disability benefits hearing upon the applicant’s request does not categorically preclude the testimony from counting as “substantial evidence” in federal court under 42 U. S. C. §405(g).
- Bucklew v. Precythe Baze v. Rees and Glossip v. Gross govern all Eighth Amendment challenges alleging that a method of execution inflicts unconstitutionally cruel pain; Russell Bucklew’s as-applied challenge to Missouri’s single-drug execution protocol -- that it would cause him severe pain because of his particular medical condition -- fails to satisfy the Baze-Glossip test.
see all this term’s cases »
Current Relists
- Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
- City of Newport Beach, California v. Vos (1) Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent and mentally ill suspect in the course of bringing the suspect into custody; (2) whether, under the Fourth Amendment “totality of the circumstances” analysis for assessing the reasonableness of force used against a suspect who attacks law enforcement officers, a court must take into account allegedly unreasonable police conduct that took place before the use of force, but foreseeably created the need to use that force; and (3) whether, under the Fourth Amendment’s analysis for use of force, a law enforcement officer’s interest in using deadly force against a suspect threatening an officer’s life is diminished if the assailant is mentally ill.
- Dahne v. Richey Whether prison inmates have a First Amendment right to include threatening, abusive and irrelevant language in grievances.
More Petitions »
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Cases argued 70

Cases decided 32

Summary reversals 4

Merits cases granted to date 73

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7	8	9	10	11	12 Conference	13
14	15 Orders IANCU V. BRUNETTI (18-302) EMULEX CORP. V. VARJABEDIAN (18-459)	16 PARKER DRILLING MANAGEMENT SERVICES V. NEWTON (18-389) NORTH CAROLINA DEPARTMENT OF REVENUE V. KAESTNER FAMILY TRUST (18-457)	17 UNITED STATES V. DAVIS (18-431) MCDONOUGH V. SMITH (18-485)	18 Conference	19	20
21	22 Orders FOOD MARKETING INSTITUTE V. ARGUS LEADER MEDIA (18-481) FORT BEND COUNTY, TEXAS V. DAVIS (18-525)	23 MITCHELL V. WISCONSIN (18-6210) REHAIF V. UNITED STATES (17-9560) DEPARTMENT OF COMMERCE V. NEW YORK (18-966) Opinions	24 QUARLES V. UNITED STATES (17-778) TAGGART V. LORENZEN (18-489) Opinions	25	26 Conference	27
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Justice Thomas at Pepperdine Law School

On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.

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Awarded the Sigma Delta Chi deadline reporting award for online coverage of the Affordable Care Act decision.
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Cases argued	70
Cases decided	32
Summary reversals	4
Merits cases granted to date	73

Mission Product Holdings Inc. v. Tempnology, LLC

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Justices allow Texas execution to go forward – Amy Howe

Reschedule Watch Returns – John Elwood

Argument analysis: Court leaning toward requiring the government to prove that a felon in possession knew he was a felon – Evan Lee

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Peabody Award

Sigma Delta Chi

National Press Club Award

Silver Gavel Award

American Gavel Award

Webby Award