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On Friday, the Supreme Court released orders from the January 17 conference, granting six cases for a total of three hours of oral argument. The justices are expected to release additional orders from the conference on Tuesday at 9:30 a.m.
On Tuesday at 10:00 a.m., the justices will hear oral argument in Shular v. United States. Click to read our preview from Leah Litman.
On Tuesday at 11:00 a.m., the justices will hear oral argument in GE Energy Power Conversion France v. Outokumpu Stainless USA. Click to read our preview from Ronald Mann.

Wednesday round-up

By on Jan 15, 2020 at 7:11 am

The justices wrap up the first week of the January session this morning with one oral argument, in Babb v. Wilkie, which asks whether federal employees suing under the Age Discrimination in Employment Act must prove that age discrimination was a but-for cause of an adverse employment action. Charlotte Garden previewed the case for this blog. Lachanda Reid and Gabriela Markolovic have a preview at Cornell Law School’s Legal Information Center.

Yesterday the court released two opinions. In Ritzen Group Inc. v. Jackson Masonry, LLC, a unanimous court held that a bankruptcy court’s order denying a creditor’s motion to lift the automatic stay of efforts by creditors to collect debts from the debtor is a final order that the creditor can appeal. Ronald Mann analyzes the opinion for this blog. And in a per curiam opinion in Retirement Plans Committee of IBM v. Jander, the court sent the case back for the lower court to consider issues that were raised in the briefing but had not been decided below. Ronald Mann has this blog’s opinion analysis.

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Politics is in the air at the Supreme Court today. Not the looming impeachment trial of President Donald Trump, which will be drawing Chief Justice John Roberts across the street to the Senate in a matter of days, but the “Bridgegate” affair out of New Jersey.

In 2013, three New Jersey officials schemed to close two of three access lanes normally dedicated to rush hour traffic from Fort Lee, N.J., onto the George Washington Bridge to New York City. (The other two lanes were shifted to join the eight used by interstate traffic approaching the toll plaza, a not insignificant fact when it comes to the legal theories in the case.)

The plan was payback against the Democratic mayor of Fort Lee for refusing to endorse New Jersey Gov. Chris Christie for reelection that year. The plan caused massive traffic headaches in Fort Lee for several days as well as longer-term political and legal fallout for all involved.

Chris Christie and his wife, seated in front of Bridget Kelly and her lawyer, Michael Critchley Sr. (Art Lien)

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My analysis of the November argument in Retirement Plans Committee of IBM v. Jander suggested that the justices were not yet settled on a consensus resolution to this case. What we learned this morning is that they would rather let the court of appeals take another look at the matter than resolve it directly.

Jander raises some crucial questions about employee-benefit plans governed by the Employee Retirement Income Security Act of 1974, so this case (or one like it) well might be back on the Supreme Court’s docket in the years to come. The basic problem involves the fiduciaries of pension plans that invest in employer stock. Those fiduciaries traditionally have been insiders (usually major executives) of the employers. In their executive capacity, they are likely to learn inside information about adverse (or positive) events that could affect the value of the employer’s stock. When that information is adverse, it places those officers in a conflict. On the one hand, as fiduciaries for the beneficiaries of the pension plan, they are supposed to be managing the assets of the pension plan exclusively for the benefit of the employees. On the other hand, as insiders of the company, they well might have personal interests in slowing disclosure of adverse information. Laid on top of those considerations is the obligation eventually to disclose that information to the public markets under the securities laws. Continue reading »

Ritzen Group v. Jackson Masonry is one of those uncommon cases in which the argument left little doubt about how the justices would rule. I often think that arguments suggest a likely outcome, but rarely am I certain enough about a “lean” to predict a particular result in a post summarizing the argument. I took that risk in my argument analysis in Ritzen Group, though, and it paid off with this morning’s opinion holding that creditors are entitled to an immediate appeal of a bankruptcy court order denying relief from the automatic stay of creditors’ debt-collection efforts that results when a petition for bankruptcy is filed.

Justice Ruth Bader Ginsburg wrote a brief opinion for a unanimous bench. As she explains, federal courts ordinarily hear appeals only from “final decisions” that completely resolve “cases” pending in the district courts. That framework, though is “not attuned to the distinctive character of bankruptcy litigation.” Because a bankruptcy proceeding centralizes in the bankruptcy court almost all matters involving the debtor, bankruptcy courts routinely “resolve discrete controversies definitively while the umbrella bankruptcy case remains pending.” Accordingly, the relevant statute (Section 158 of the Judicial Code) provides for appeals not only from final decisions in “cases,” but from all “final judgments, orders, and decrees … in cases and proceedings.” An earlier case (Bullard v Blue Hills Bank) explained that Section 158’s reference to “proceedings” contemplates an immediate appeal whenever bankruptcy court orders “finally dispose of discrete disputes within the larger case.” Continue reading »

It has been nearly six and a half years since allies of Chris Christie, then the governor of New Jersey, created gridlock on the streets of Fort Lee by eliminating two of the three lanes on the George Washington Bridge reserved for drivers accessing the bridge from the New Jersey city. William Baroni, whom Christie had named as a senior official to the Port Authority of New York and New Jersey, which operates the bridge, and Bridget Kelly, Christie’s deputy chief of staff, planned the incident along with David Wildstein, an aide to Baroni, to punish the Democratic mayor of Fort Lee for his failure to endorse Christie during Christie’s 2013 reelection campaign. To explain the changes to the traffic pattern, Baroni, Kelly and Wildstein concocted a fictitious traffic study, but the regular lanes were restored three days later, when the executive director of the Port Authority learned about the changes. Wildstein pleaded guilty to conspiracy charges, and Baroni and Kelly were found guilty of violating federal property-fraud laws. Baroni and Kelly were at the Supreme Court today, asking the justices to throw out those convictions. During an hour of oral argument this morning, the justices had tough questions for both sides and appeared divided – although not necessarily on ideological lines.

Jacob M. Roth at lectern for petitioner (Art Lien)

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Res judicata, which includes both issue preclusion and claim preclusion, is a common-law doctrine meant to discourage repetitive litigation, preserve judicial resources and protect the finality of judgments. Although there are general principles that govern the applicability of res judicata, courts also consider the unique facts of a given case in deciding whether a party should be precluded from relitigating a particular claim or issue. During yesterday’s oral argument in Lucky Brand Dungarees, Inc. v. Marcel Fashion Group, Inc., the justices seemed concerned both with what exactly had transpired in this litigation and with the potential impact of the lower court’s decision on litigation more generally.

Dale Cendali for petitioners (Art Lien)

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The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards

It is a slow year for arbitration when the justices can get all the way to the second week of the January argument session before hearing their first arbitration dispute of the term. But that is where we are with GE Energy Power Conversion France SAS v Outokumpu Stainless USA, set for argument next Tuesday. For those familiar with the Supreme Court’s steady diet of cases under the Federal Arbitration Act, this one is a bit of a departure, as it arises under a treaty: the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention. The treaty obligates the United States and about 160 other signatories to enforce arbitration agreements between businesses of member states. While the FAA directly compels enforcement of contracts to arbitrate among U.S. businesses, it is Congress’ implementation of the New York Convention that obligates federal courts to enforce arbitration agreements in which one or more of the parties is foreign. Continue reading »

Shular v. United States is a case about the reach of the now infamous categorical approach to the Armed Career Criminal Act. ACCA imposes higher sentences on repeat offenders who are convicted of gun-related crimes. Under the categorical approach, courts look to the elements of the crime rather than a defendant’s actual conduct to decide whether the prior conviction triggers ACCA’s higher sentences.

Eddie Lee Shular pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g). Shular had agreed to hold his mother’s unloaded firearm while she rebuilt her home. Typically, the felon-in-possession offense carries a term of imprisonment of zero to 10 years. But Section 924(e)(1) of the ACCA increases that term to 15 years to life if the defendant has three or more previous convictions for “a violent felony or a serious drug offense.” Continue reading »


Relist Watch

By on Jan 14, 2020 at 12:07 pm

John Elwood briefly reviews Monday’s relists.

There are so many interesting relists to discuss this week that I’m not even going to try. Who has time to discuss 19 new relists? After all, I’m busy preparing for other pressing commitments, so it’s time once again for the affordable luxury of Relist Watch SelectTM.

As some internet rando put it, “[t]his week’s relists involve the most comically high-profile group of issues I think I’ve ever seen. If they actually granted in all those cases, everyone’s heads would explode.” Allowing for some forgivable hyperbole when you consider the source, the guy has a point: This week’s relists raise some crazy-interesting issues. Continue reading »

The justices’ questions in yesterday’s argument in Thole v. U.S. Bank addressed 15th-century trust law, the risk of being hit by a meteorite and practical concerns with being able to identify the risk of loss of pension benefits. At issue is whether participants and beneficiaries in fully funded defined-benefit plans have standing to sue plan fiduciaries for alleged breaches of their statutory fiduciary duties under the Employee Retirement Security Act.

Peter K. Stris for petitioners (Art Lien)

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