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NEW & NOTEWORTHY

  
  • On January 26, 2015, the U.S. Supreme Court reversed a line of decisions by the U.S. Court of Appeals for the Sixth Circuit and held that ordinary principles of contract law govern welfare benefit plans under the Employee Retirement Income Security Act of 1974, without any presumptions in favor of finding that the benefits have vested. In M&G Polymers USA, LLC v. Tackett, the parties entered into a collective-bargaining agreement for company-provided employee health care benefits that provided a defined termination date. After the agreement terminated, the employer began requiring employees to contribute to their health care benefits, to which the employees objected. Justice Thomas, for a unanimous Court, held that, under standard rules of contract interpretation, a vested lifetime benefit could not be inferred given the unambiguous termination date for the agreement, reversing the Sixth Circuit’s decision in Int’l Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983) and its progeny. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, filed a concurrence imploring the Sixth Circuit, on remand, to “examine the entire agreement to determine whether the parties intended retiree health-care benefits to vest” in case such vesting might be implied from the agreement’s terms. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The U.S. Supreme Court issued three new opinions on January 21, 2015.

    After the Transportation Security Administration issued a regulation prohibiting the disclosure of “specific details of aviation security measures,” air marshal MacLean told a reporter that he believed certain flight cancellations were dangerous and illegal. The TSA fired him, and he argued his disclosure was protected whistleblower activity under 5 U.S.C. sec. 2302(b)(8)(A), which protects TSA employees who disclose violations of any law, rule, or regulation, or a danger to the public, unless “specifically prohibited by law.” Chief Justice Roberts, joined by six justices, held that 2302(b)(8)(A)’s exception, as written, only applied to laws, not regulations, and thus MacLean was eligible for whistleblower protection. Justice Sotomayor, joined by Justice Kennedy, agreed with most of the Court’s opinion, but argued that a separate statute that ordered the TSA to prescribe regulations prohibiting the disclosure of information would bring the TSA’s regulation under the whistleblower exception as a law. A link to the opinion in Department of Homeland Security v. MacLean is here.

    Justice Ginsburg, for a unanimous Court, held that when plaintiffs with a discrete claim have their complaint dismissed without leave to amend, that dismissal is a final appealable order even if the plaintiffs’ claim has been consolidated into a multidistrict litigation action. In Gelboim v. Bank of America, the Court held that cases consolidated for multidistrict litigation retain their separate identities, so dismissal of the plaintiffs’ complaint here effectively removed the plaintiffs from the consolidated proceeding for the purposes of appeal. A link to the opinion is here.

    Finally, the Court held that whether two trademarks may be tacked for the purposes of determining priority is a question of fact for a jury to decide. Tacking is where a trademark owner makes certain modifications to its mark over time while retaining its first-in-time priority over other users. In Hana Financial, Inc. v. Hana Bank, Justice Ginsburg, for a unanimous Court, held that “because the tacking inquiry operates from the perspective of an ordinary purchaser or consumer,” whether a modification qualifies for tacking is a fact question for a jury, and not a question of law for a judge. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The U.S. Supreme Court issued three new opinions on January 20, 2015.

    In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the district court held that a patent claim for a drug was not invalid for indefiniteness because a skilled artisan would know how the main ingredient’s weight was calculated, but the Federal Circuit reversed after reviewing the district court’s ruling de novo as to all aspects, including its determination of subsidiary facts. The Supreme Court, in a 7-member majority opinion by Justice Breyer, reversed the Federal Circuit’s decision, and held that Federal Rule of Civil Procedure 52(a)(6) required the appellate court to use the higher “clear error” standard of review, not de novo. Thus when a district court needs to consult extrinsic evidence in order to understand the background science or the meaning of a term of art in a patent claim, those findings of fact may only be overturned upon a showing of clear error. Justice Thomas, joined by Justice Alito, dissented, arguing that a district court’s construction of a patent claim does not constitute “findings of fact” under Rule 52(a)(6) that would be entitled to clear error review because a patent claim is historically more akin to a statute than a contract or deed. A link to the opinion is here.

    A unanimous Court held in Holt v. Hobbs that a prison regulation forbidding beards was an impermissibly substantial burden on petitioner’s religious exercise as a Muslim under the Religious Land Use and Institutionalized Persons Act of 2000. Justice Alito’s majority opinion noted that even if the grooming policy furthered compelling state interests in prisoner identification and security, there were less restrictive alternative means available to the State, nor could the prison in this instance explain why the vast majority of other States and the Federal Government permitted beards while it could not. Justice Ginsburg, joined by Justice Sotomayor, filed a concurrence to distinguish this case from Burwell v. Hobby Lobby Stores, Inc. Justice Sotomayor filed her own concurrence to make the point that while prison officials were entitled to deference in making security policies for inmates, and need not refute every conceivable counter-option, the Act requires more than unsupported assertions. A link to the opinion is here.

    Finally, in a per curiam opinion, the Court summarily reversed a holding of the U.S. Court of Appeals for the Eighth Circuit, without briefing or argument, and held that an inmate on death row was entitled to consideration under Martel v. Clair, 132 S.Ct. 1276 (2012) whether he was entitled to have new counsel substituted in when his prior appointed counsel missed his deadline to file a habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996. The prior counsel’s conflict of interest in making the inmate’s plea that the deadline was equitably tolled as a result of counsel’s effective malpractice should have been part of the district court’s analysis and application of Martel. Justice Alito, joined by Justice Thomas, dissented, arguing that the case should have proceeded through briefing and argument, and noting his belief that the Court’s decision did not opine on the ultimate question of whether the inmate was entitled to equitable tolling under AEDPA. A link to the decision in Christeson v. Roper is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The U.S. Supreme Court issued two new opinions on January 14, 2015.

    In an important new decision resolving a circuit split under the Telecommunications Act, the Court held that a locality must provide its written reasons for rejecting an application for a wireless service facility “essentially contemporaneously with the written denial letter or notice” to be compliant under the Act. In T-Mobile South, LLC v. City of Roswell, Georgia, a city council issued a denial letter to an applicant for a cell phone tower, but did not make its written reasons supporting that decision, in the form of written minutes of the city council’s meeting, available until 26 days later—four days before the applicant’s deadline to file suit challenging the decision. Justice Sotomayor, joined by five justices, held that while the denial letter itself need not contain the reasons for denial, the city council violated the Act by not releasing those reasons until 26 days after the denial letter was issued. The majority noted that such a delay could cause an applicant to have to guess at what the locality’s reasons were for rejecting the application, and then get “sandbagged” when the locality manufactures those reasons after suit is filed. Chief Justice Roberts, joined by Justice Ginsburg in full and Justice Thomas in part, dissented, arguing that the “contemporaneous” requirement was not found in the text of the Act. Justice Thomas filed a separate dissent arguing that the Court reached beyond the bounds of the dispute to establish its timing requirement. A link to the opinion is here.

    After being sentenced to death for killing a police officer, the petitioner in Jennings v. Stephens filed for habeas corpus review, arguing constitutional violations of his rights by ineffectiveness of his counsel under three theories. The district court upheld his claim as to two of those theories, but not the third, and ordered his conditional release unless Texas granted him a new sentencing hearing or resentenced him to a term of imprisonment. Texas appealed the district court’s grant under the two theories, and the petitioner argued his third theory on appeal without first obtaining a certificate of appealability under 28 U.S.C. sec. 2253(c). The U.S. Court of Appeals for the Fifth Circuit held that petitioner’s argument on his third theory was not properly appealed, and thus not before that court. The U.S. Supreme Court, in an opinion by Justice Scalia, joined by five justices, reversed, holding that the petitioner was not obligated to cross-appeal the district court’s denial of relief under his third theory because that line of argument did not expand his rights under the district court’s conditional order of release. Justice Thomas, joined by Justices Kennedy and Alito, in a dissent that repeatedly cited from prior opinions by Justice Scalia, argued that a cross-appeal on the third theory was necessary because it sought to expand his rights under the district court’s judgment by adding an additional ground for Texas to have to address as part of the conditional release order. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The U.S. Supreme Court issued two new opinions on January 13, 2015.

    Resolving the apparent conflict between two provisions of the Truth in Lending Act, the Court unanimously held in Jesinoski v. Countrywide Home Loans, Inc. that a borrower’s right to rescind a loan is timely so long as the borrower notifies the creditor within three years of when the transaction is consummated of his or her intention to rescind, per 15 U.S.C. sec. 1635(a). Justice Scalia’s opinion, reversing the decision of the U.S. Court of Appeals for the Eighth Circuit, explained that Section 1635(f), which provides that the “right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever comes first,” did not require the borrower to file suit within the three-year time period in order to rescind a loan—a simple written notice under 1635(a) was all that was necessary. Thus, the borrowers’ lawsuit in this case, filed four years after the transaction, but only one year after a timely 1635(a) notice, could proceed. A link to the opinion is here.

    Justice Scalia, again for a unanimous Court, held that a bank robber “forces any person to accompany him without the consent of such person” pursuant to 18 U.S.C. sec. 2113(e) even if that bank robber only forces the other person to move a very short distance. In the tragic case of Whitfield v. United States, Whitfield, fleeing a botched bank robbery, entered the home of a 79 year-old woman, and guided her from the hallway to a computer room between four and nine feet away, where she suffered a fatal heart attack. Whitfield was found guilty of violating 2113(e), and he appealed, arguing that there had to be “substantial” movement to support the conviction. Noting that the accompaniment clause had not changed since the days of John Dillinger in 1934, the Court held that movement from “one place to another, even if only from one spot within a room or outdoors to a different one,” qualified under 2113(e), although “minimal movement—for example, the movement of a bank teller’s feet when the robber grabs her arm” would not qualify. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • Nancy Ortmeyer Kuhn, Chair of our Tax Law Business Group, was quoted in a ProPublica article, "New IRS Rules On Dark Money Likely Won't Be Ready Before 2016 Election". The article was also picked up by Politico and the Huffington Post.



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  • Seeking to clarify when a litigant must appeal both a merits judgment and a subsequent attorneys’ fee award, the U.S. Court of Appeals for the Fourth Circuit held that a post-judgment motion for attorneys’ fees does not toll the 30-day time limit to appeal under 28 U.S.C. sec. 2107(a) unless the trial court also expressly extends the time to appeal under Federal Rule of Civil Procedure 58. In Hudson v. Pittsylvania County, Virginia, the plaintiff filed a complaint concerning the practice of the county’s board of supervisors to open its proceedings with a Christian invocation. The district court entered judgment in favor of the plaintiff, while retaining jurisdiction over the matter for purposes of enforcement, and months later awarded the plaintiff her attorneys’ fees. The county appealed both rulings 175 days after the entry of judgment, arguing that the district court’s retention of jurisdiction precluded that order from being a final appealable order. Judge Duncan, for a unanimous panel, disagreed, holding that the district court’s order was final by its terms, and the later award of attorneys’ fees did not toll the deadline to appeal since the district court did not extend the time to appeal. Thus the county’s appeal was untimely and the Court did not address whether the district court’s opinion conflicted with the U.S. Supreme Court’s later decision in Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811 (2014). A link to the opinion, issued on December 17, 2014, is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The U.S. Supreme Court issued two new opinions on December 15, 2014.

    In the first case, the Court held that a search of a car is reasonable under the Fourth Amendment even if the police officer stops the vehicle under a mistaken understanding of the law. In Heien v. North Carolina, the officer in question stopped a car for having a broken brake light, thinking that was in violation of North Carolina state law. However, the law only mandates that a car have at least one functioning brake light, which this car did. The Court, in an opinion by Chief Justice Roberts, held that this mistake by the officer was objectively reasonable, given the unclear wording in the statute, and hence the ensuing search of the car (which uncovered cocaine) was also reasonable under the Fourth Amendment. Justice Kagan, joined by Justice Ginsburg, filed a concurrence, emphasizing that the subjective understanding of the officer is irrelevant in the analysis, and that the analysis set forth by the Court is “more demanding than the one courts undertake before awarding qualified immunity.” Justice Sotomayor was the lone dissenter, arguing that “there is nothing in our case law requiring us to hold that a reasonable mistake of law can justify a seizure under the Fourth Amendment, and quite a bit suggesting just the opposite.” A link to that opinion is here .

    A petition for removal of a case from state court to federal court must contain “a short and plan statement of the grounds for removal.” 28 U.S.C. sec. 1446(a). The Court, in an opinion by Justice Ginsburg supported by a bare majority, held that this standard does not require the movant to provide actual evidence of the amount in controversy in the petition to meet the requirements of the statute, but must only allege that amount “plausibly.” In Dart Cherokee Basin Operating Co. v. Owens, Dart Cherokee moved to remove Owens’ class action suit, which requested “a fair and reasonable amount” in damages, and the removal motion stated that the amount in controversy exceeded $8.2 million, well over the $5 million minimum required by statute. The district court remanded the case back to state court for Dart Cherokee’s failure to provide proof of the jurisdictional amount in the notice of removal itself, and the U.S. Court of Appeals for the Tenth Circuit denied Dart Cherokee permission to appeal. The Court’s 5-member majority reversed, holding that if the plaintiff or court questions the movant’s allegation of the jurisdictional amount, then evidence is only required per the process set forth in 1446(c)(2)(B), but need not be in the petition itself. Justice Scalia, joined by Justices Kennedy, Kagan, and Thomas, filed a dissent arguing that the Court was wrong to correct the district court’s ruling since the only issue that could be raised on appeal was whether the Tenth Circuit was wrong in denying permission to appeal in the first instance—a completely different question. Justice Thomas filed an additional dissent, arguing that the Court lacked jurisdiction to review the Tenth Circuit’s decision. A link to that opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The U.S. Supreme Court issued two new opinions on December 9, 2014.

    In Integrity Staffing Solutions, Inc. v. Busk, employees at a warehouse for Amazon.com argued they were entitled to pay under the Fair Labor Standards Act for time spent at mandatory security screenings before being allowed to leave the warehouse each day. The Court, in a unanimous opinion by Justice Thomas, held that the screenings were not compensable under the Portal to Portal Act, reversing the Ninth Circuit. The Court specifically held that to be compensable, the act must be one the employee was “employed to perform” or “an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Justice Sotomayor, joined by Justice Kagan, concurred, sharing their gloss on the standards the Court employed. A link to that opinion is here

    The workings of juries have often been compared to a black boxes in regard to their secrecy. The Court further enforced that impression in Warger v. Shauers, where the Court held that Federal Rule of Evidence 606(b) precluded the use of a juror’s affidavit about statements made by another juror. In this case, plaintiff’s counsel learned from a juror after a defense verdict that another juror had disclosed a bias during deliberations that should have revealed during voir dire. Plaintiff’s counsel moved for a new trial based on that statement. Justice Sotomayor’s opinion for a unanimous Court resolved a circuit split and held that Rule 606(b)’s exclusion applies to any juror statement that might be used in an “inquiry into the validity of a verdict,” including statements that might indicate another juror lied during voir dire. A link to that opinion is here

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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