SCOTUScast

On March 20, 2019, the Supreme Court decided Frank v. Gaos, a case raising the question whether, or under what circumstances, a cy pres award that provides no direct relief to class members fulfills the Federal Rules of Civil Procedure 23(e) requirement that a class action settlement be "fair, reasonable, and adequate."In a class-action suit with three named plaintiffs, Google was accused of violating the Stored Communications Act by sharing user search terms and other information with the server hosting whatever webpage that user clicked to via Google Search results. A settlement was reached that would require Google to include certain disclosures on some of its webpages and would distribute more than $5 million to cy pres recipients, more than $2 million to class counsel, and no money to absent class members. The district court approved the settlement over the objections of several class members, and the U.S. Court of Appeals for the Ninth Circuit affirmed. The Supreme Court then granted certiorari to address petitioners’ challenge that this cy pres settlement did not satisfy the Rule 23(e) requirement that class action settlements be “fair, reasonable, and adequate,” but did not ultimately reach the merits of that question.In a per curiam opinion, the Court vacated the judgment of the Ninth Circuit and remanded the case for further proceedings to determine whether the class action plaintiffs even had standing to bring their class action in light of the Supreme Court’s 2016 decision in Spokeo v. Robins. That case held that “Article III standing requires a concrete injury even in the context of a statutory violation.” Here, the Court indicated, the lower courts needed to resolve “whether any named plaintiff has alleged [Stored Communications Act] violations that are sufficiently concrete and particularized to support standing.” If not, the lack of standing would deprive the federal courts of subject matter jurisdiction in this case. Justice Thomas dissented. To discuss the case, we have Theodore "Ted" Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute - and one of the named petitioners in this case.

On March 19, 2019, the Supreme Court decided Air & Liquid Systems Corp. v. Devries, a case addressing the liability of a manufacturer under maritime law for injuries caused when asbestos was incorporated into their product by a third party after sale.The Air & Liquid Systems Corporation (ALS) produced equipment for United States Navy ships. Parts of the equipment required asbestos insulation and asbestos parts in order to function but the manufacturers delivered the equipment without asbestos and the Navy added it later. Two Navy veterans, Kenneth McAfee and John DeVries developed cancer and died after being exposed to asbestos while stationed on the ships. Their families sued manufacturer ALS in federal district court, alleging that it had negligently failed to warn about the dangers of asbestos in the integrated products. ALS countered that it should not be held liable for asbestos that was added later by a third party, an argument known as the “bare metal” defense. The district court ruled in favor of ALS but the U.S. Court of Appeals for the Third Circuit vacated that judgment and remanded the case, concluding that a “bare metal” manufacturer could still be held liable if it was foreseeable that the materials in question would have been used with later-added asbestos-containing materials. The Supreme Court then granted certiorari to resolve a split among the circuit courts of appeals on whether the “bare metal” defense is valid under maritime law.By a vote of 6-3, the Supreme Court affirmed the judgment of the Third Circuit. Justice Kavanaugh delivered the opinion of the Court, holding that, in the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger. The majority opinion was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Gorsuch filed a dissenting opinion, in which Justices Thomas and Alito joined.To discuss the case, we have Karen R. Harned, Executive Director, NFIB Small Business Legal Center.

On March 26, 2019, the Supreme Court decided Sturgeon v. Frost, a case considering whether the Alaska National Interest Lands Conservation Act (ANILCA) prohibits the National Park Service from exercising regulatory control over state, native corporation, and private land physically located within the boundaries of the National Park System in Alaska.Congress, through ANILCA, created ten new national parks, monuments, and preserves with 104 million acres of federally owned land. When selecting the boundary lines, Congress chose to use the natural features of the land rather than strictly the federally owned land. The state, private, and Native lands within the boundary lines became in-holdings totaling 18 million acres. To protect the landowners, Congress included Section 103(c) which, in part, states that only federally owned lands within a conservation reserve unit were to be considered a part of the unit and that no state or private land is subject to regulations pertaining to federal land within the unit. Petitioner John Sturgeon, a hunter, had been using a hovercraft to navigate up a portion of the Nation River that runs through the Yukon-Charley Preserve, a conservation unit in Alaska. The National Park Service (NPS) informed Sturgeon of a regulation prohibiting the operation of a hovercraft on navigable waters within the boundaries of any national park regardless of in-holdings. Sturgeon sought an injunction against the National Park Service arguing that the land he was using was owned by the state of Alaska and NPS had no authority to enforce its hovercraft ban there. After an initial round of litigation resulting in remand by the Supreme Court for further consideration, the District Court again ruled against Sturgeon, interpreting Section 103(c) to limit NPS’ authority to impose Alaska-specific regulations on property inholdings--but not its authority to enforce nationwide regulations such as the hovercraft rule. The U.S. Court of Appeals for the Ninth Circuit affirmed, but the Supreme Court again granted certiorari and rejected that interpretation as implausible, directing the Ninth Circuit on remand to consider whether the Nation River qualifies as “public land” (thereby subjecting it to NPS authority)--and if not, whether some other theory afforded NPS regulatory power over the river in question. The Ninth Circuit found that the Nation River did qualify as public land, ruling against Sturgeon yet again. For the third time, the Supreme Court granted certiorari to review that court’s judgment.By a vote of 9-0, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion delivered by Justice Kagan, the Court unanimously held that Nation River is not public land for purposes of ANILCA--and like all non-public lands and navigable waters within Alaska’s national parks, is exempt under Section 103(c) from NPS’ ordinary regulatory authority.Justice Sotomayor filed a concurring opinion, in which Justice Ginsburg joined.To discuss the case, we have Tony Francois, Senior Attorney, Pacific Legal Foundation.

On April 1, 2019, the Supreme Court decided Bucklew v. Precythe, a case considering the standard applicable when an offender sentenced to death raises an Eighth Amendment challenge to the state’s lethal injection procedure.Petitioner Russell Bucklew was convicted of murder and sentenced to death by lethal injection of a single drug, pentobarbital, by the State of Missouri. Bucklew challenged the State’s injection protocol under the Eighth Amendment, alleging that regardless of whether it would cause excruciating pain for all prisoners, it would cause him severe pain because of a particular medical condition he had. The District Court dismissed his challenge. The U.S. Court of Appeals Eighth Circuit, applying Supreme Court precedent in Baze v. Rees and Glossip v. Gross, remanded the case to allow Bucklew to identify a feasible, readily implemented alternative procedure that would significantly reduce his alleged risk of pain. Bucklew eventually suggested nitrogen hypoxia, but the District Court rejected his argument for lack of evidence. A divided Eighth Circuit panel affirmed, and the Supreme Court granted certiorari.By a vote of 5-4, the Supreme Court affirmed the judgment of the Eighth Circuit. In an opinion delivered by Justice Gorsuch, the court held that Baze and Glossip govern all Eighth Amendment challenges alleging that a method of execution inflicts unconstitutionally cruel pain, and Bucklew’s as-applied challenge fails the Baze-Glossip test. He failed to raise a triable issue of fact regarding the viability of nitrogen hypoxia as an alternative method, and even if he had there was no showing that it would significantly reduce a substantial risk of severe pain.Justice Gorsuch’s majority opinion was joined by the Chief Justice and Justices Thomas, Alito, and Kavanaugh. Justice Thomas and Justice Kavanaugh filed concurring opinions. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined as to all but Part III. Justice Sotomayor also filed a dissenting opinion.To discuss the case, we have Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation.

On June 17, 2019, the Supreme Court decided Gamble v. United States, a case challenging the validity of the "separate sovereigns" exception to the Double Jeopardy Clause of the U.S. Constitution’s Fifth Amendment.In 2015 Terance Gamble, who had previously been convicted of second-degree robbery in Alabama state court, pleaded guilty in state court to possessing a firearm in violation of Alabama’s law against firearm possession by anyone convicted of a “crime of violence.” Federal prosecutors thereafter relied on the same facts to charge Gamble with violating the federal statute that forbids convicted felons to possess a firearm. Gamble moved to dismiss the federal charge, arguing that the Double Jeopardy Clause precluded a second conviction for essentially the same offense. The district court and the U.S. Court of Appeals for the Eleventh Circuit rejected Gamble’s argument due to the “dual sovereignty” or “separate sovereigns” doctrine, which holds that two offenses are not the same for Double Jeopardy purposes when pursued by separate (here, state and federal) sovereigns. The Supreme Court granted certiorari to determine whether the separate sovereigns doctrine should be overturned.By a vote of 7-2, the Supreme Court affirmed the judgment of the Eleventh Circuit. Justice Alito delivered the opinion of the Court, declining to overturn the dual sovereignty doctrine. His majority opinion was joined by Chief Justice Roberts and Justices Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh joined. Justice Thomas filed a concurring opinion. Dissenting opinions were filed by Justice Gorsuch and Justice Ginsburg.To discuss the case, we have Clark Neily, Vice President for Criminal Justice at the Cato Institute.

On June 24, 2019, the Supreme Court decided Dutra Group v. Batterton, a case addressing whether a plaintiff may recover punitive damages on a claim of unseaworthiness.Christopher Batterton was injured while working on a vessel owned and operated by the Dutra Group. Batterton claimed the vessel was unseaworthy due to a missing safety feature and sued Dutra in federal district court for, among other things, punitive damages. Dutra argued that punitive damages are not available on claims for unseaworthiness, but the district court and the U.S. Court of Appeals for the Ninth Circuit rejected Dutra’s argument. Because that ruling underscored a division among the circuit courts of appeals on the issue, the Supreme Court granted certiorari to resolve the split.By a vote of 6-3, the Supreme Court reversed the Ninth Circuit’s judgment and remanded the case. Justice Alito delivered the opinion of the Court, holding that a plaintiff may not recover punitive damages on a claim of unseaworthiness. Justice Alito’s majority opinion was joined by Chief Justice Roberts and Justices Thomas, Kagan, Gorsuch, and Kavanaugh. Justice Ginsburg dissented, joined by Justices Breyer and Sotomayor. To discuss the case, we have Don Haycraft, Counsel at Liskow & Lewis.

On June 26, 2019, the Supreme Court decided Tennessee Wine & Spirits Retailers Association v. Thomas, a case considering whether Tennessee’s two-year durational residency requirement for obtaining a retail liquor license is constitutional.In 2016, companies Total Wine and Affluere Investments, Inc. applied for licenses to own and operate liquor stores in Tennessee. Although state law imposed a two-year durational residency requirement that the entities did not meet, the Tennessee Alcoholic Beverage Commission (TABC) had obtained an opinion from the state attorney general that the requirement operated as a discriminatory trade restraint in violation of the U.S. Constitution’s Commerce Clause. TABC, therefore, recommended approval of the licenses, but trade association Tennessee Wine and Spirits Retailers Association (Association)--composed of in-state liquor retailers--threatened to sue TABC if the licenses were granted. TABC, therefore, sought declaratory relief on the validity of the durational residency requirement, and the case was removed to federal district court. The district court held the requirement unconstitutional, the state declined to appeal, and the licenses issued. The Association, however, pursued its objections before the U.S. Court of Appeals for the Sixth Circuit, which ultimately affirmed the district court--though a dissenting judge argued that the Constitution’s Twenty-first Amendment granted states broad authority to regulate the in-state distribution of alcohol, and would have upheld the residency requirement. The Supreme Court subsequently granted certiorari to reconcile its Twenty-first Amendment and dormant Commerce Clause precedents.By a vote of 7-2, the Supreme Court affirmed the judgment of the Sixth Circuit. Justice Alito delivered the opinion of the Court, holding that Tennessee’s two-year durational-residency requirement applicable to retail liquor store license applicants violates the Commerce Clause and is not saved by the Twenty-first Amendment. Justice Alito’s majority opinion was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh. Justice Gorsuch dissented, joined by Justice Thomas.To discuss the case, we have Michael Bindas, Senior Attorney at the Institute for Justice.

On June 24, 2019, the Supreme Court decided Iancu v. Brunetti, a case considering whether a provision of the Lanham Act prohibiting the registration of “immoral or scandalous” trademarks infringes the First Amendment.Business owner Erik Brunetti applied to register his clothing brand’s trademark, “FUCT,” (pronounced as the individual letters F-U-C-T) but was refused by the U.S. Patent and Trademark Office (PTO) because the Lanham Act prohibits registration of marks that consist of or comprise “immoral or scandalous” matter. The PTO Trademark Trial and Appeal Board deemed the mark vulgar and indicated that it carried “negative sexual connotations,” and in association with Brunetti’s website imagery and products conveyed misogyny, depravity, and violence. Brunetti then appealed to the U.S. Court of Appeals for the Federal Circuit, which held that the Lanham Act’s prohibition violated the First Amendment. The Supreme Court then granted certiorari to address the lower court’s invalidation of the federal statute.By a vote of 6-3, the Supreme Court upheld the judgment of the Federal Circuit. In an opinion delivered by Justice Kagan, the Court held that the Lanham Act prohibition on the registration of “immoral” or “scandalous” trademarks constitutes viewpoint discrimination that infringes the First Amendment. Justice Kagan’s majority opinion was joined by which Justices Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh. Justice Alito filed a concurring opinion. Justice Breyer and Chief Justice Roberts filed opinions concurring in part and dissenting in part. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.To discuss the case, we have Thomas Berry, Attorney at the Pacific Legal Foundation.

On June 20, 2019, the Supreme Court decided The American Legion v. American Humanist Association, a case considering whether state funding of a war memorial in the form of a religious symbol is in violation of the Establishment Clause of the First Amendment. In 1925, the American Legion erected a memorial cross (Peace Cross) in Bladensburg, MD, to honor 49 soldiers who died fighting in World War I. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the land and has maintained the memorial using public funding. In 2014, the American Humanist Association (AHA) and other civil associations filed suit in District Court, alleging that the presence and publicly-funded maintenance of the Peace Cross violated the Establishment Clause of the First Amendment. AHA sought relocation, demolition, or removal of the cross’s arms. The district court ruled in favor of the American Legion, applying the Supreme Court precedents Lemon v. Kurtzman (1971) and Van Orden v. Perry (2005), concluding that the Peace Cross did not violate the Establishment Clause.A divided panel of the U.S. Court of Appeals for the Fourth Circuit reversed that judgment, applying the same precedents as the district court--but concluding that the Peace Cross conveyed to a reasonable observer the impression of state endorsement of Christianity, and excessively entangled the Commission with religion. The Supreme Court granted certiorari to address the Establishment Clause issue.By a vote of 7-2, the Supreme Court reversed the judgment of the Fourth Circuit and remanded the case. In an opinion delivered by Justice Alito, the Court held that “[t]he Bladensburg Cross does not violate the Establishment Clause.” Justice Alito delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV, joined by Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh. Justice Alito’s opinion with respect to Parts II–A and II–D was also joined by Chief Justice Roberts and Justices Breyer and Kavanaugh, but not Justice Kagan. A concurring opinion was filed by Justice Breyer in which Justice Kagan joined. Justice Kavanaugh filed a concurring opinion and Justice Kagan filed an opinion concurring in part. Justice Thomas filed an opinion concurring in the judgment. Justice Gorsuch filed an opinion concurring in the judgment, in which Justice Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined.To discuss the case, we have Christopher DiPompeo, Partner at Jones Day.

On May 13, 2019, the Supreme Court decided Franchise Tax Board of California v. Hyatt, a case considering whether states maintain sovereign immunity from private suits in the courts of other states. In the 1990s, Gilbert Hyatt moved from California to Nevada. Following an investigation and audit, however, the Franchise Tax Board of California (FTB) claimed that he had misstated the date of his move and therefore owed California millions in unpaid taxes, penalties and interest. Hyatt then brought a tort suit against FTB, which is a California state agency, in Nevada state court--and won a jury verdict of nearly $500 million. Although the Nevada Supreme Court set aside much of the award on appeal, it nevertheless affirmed an award of $1 million for fraud--even though a Nevada statute would have capped such damages in a similar suit against Nevada officials at $50,000. Nevada’s interest in providing adequate redress to its own citizens, the court concluded, superseded the application of any statutory cap for California’s benefit.In 2016, the U.S. Supreme Court reversed that judgment, concluding that the Constitution’s Full Faith and Credit Clause required Nevada courts to grant the FTB the same level of immunity that Nevada agencies enjoy. The Court divided equally, however, on whether to overrule its 1979 precedent Nevada v. Hall, which holds that the Constitution does not bar private suits against a State in the courts of another State. By statute, the Court was therefore required to affirm the jurisdiction of the Nevada Supreme Court. On remand, that court instructed the trial court to enter damages against FTB in accord with the statutory cap for Nevada agencies. Thereafter the U.S. Supreme Court again granted certiorari to reconsider Nevada v. Hall. By a vote of 5-4, the Supreme Court reversed the judgment of the Nevada Supreme Court and remanded the case. In an opinion delivered by Justice Thomas, the Court overruled Nevada v. Hall, holding that states retain their sovereign immunity from private suits brought in courts of other states. Justice Thomas’s majority opinion was joined by the Chief Justice and Justices Alito, Gorsuch, and Kavanaugh. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined. To discuss the case, we have Stephen Sachs, Professor of Law at Duke University.