SCOTUScast

On February 27, 2017, the Supreme Court heard oral argument in Packingham v. North Carolina. Lester Packingham was convicted in 2002 of taking “indecent liberties” with a minor in violation of North Carolina law, and sentenced to prison time followed by supervised release. In 2010, he was arrested after authorities came across a post on his Facebook profile--which he had set up using an alias--in which he thanked God for having a parking ticket dismissed. Packingham was charged with, and convicted of, violating a North Carolina law that restricted the access of convicted sex offenders to “commercial social networking” websites. -- Packingham challenged his conviction on First Amendment grounds, arguing that the North Carolina statute unlawfully restricted his freedom of speech and association, but the Supreme Court of North Carolina ultimately rejected his claim. The website access restriction, the Court concluded, was a content-neutral, conduct-based regulation that only incidentally burdened Packingham’s speech, was narrowly tailored to serve a substantial governmental interest, and left open ample alternative channels of communication. -- The question before the U.S. Supreme Court is whether, under the Court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a website that enables communication, expression, and the exchange of information among users--if the site is “know[n]” to allow minors to have accounts--is permissible on its face and as applied to Packingham. -- To discuss the case, we have Ilya Shapiro, who is Senior Fellow in Constitutional Studies at the Cato Institute.

On February 21, 2017, the Supreme Court heard oral argument in McLane Co. v. EEOC. Damiana Ochoa worked for McLane Company, a supply chain company. After returning from maternity leave, Ochoa was required to take a “physical abilities” test, which she failed three times. Ochoa was fired by McLane but then filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that McLane violated Title VII of the Civil Rights Act of 1964. The EEOC opened up an investigation and issued a subpoena for information McLane withheld, including either “pedigree information” for each test-taker or reasons the test-taker’s employment was terminated. When McLane refused, EEOC filed a subpoena enforcement action. The district court granted enforcement of the subpoena with respect to some information (such as the gender and score of each test taker) but declined to require the production of pedigree information or the reasons why others who had failed the test were terminated. The U.S. Court of Appeals for the Ninth Circuit, reviewing the district court’s decision “de novo,” held that the district court had erred in refusing to compel production of the pedigree information, and also needed to consider whether production of the reasons for other terminations would be unduly burdensome. -- The question before the U.S. Supreme Court is whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do. -- To discuss the case, we have Karen Harned, who is Executive Director of the National Federation of Independent Business Small Business Legal Center.

On February 21, 2017, the Supreme Court heard oral argument in Hernandez v. Mesa. In 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, died after being shot near the border between El Paso, Texas and Juarez, Mexico by Jesus Mesa, Jr., a U.S. Border Patrol Agent. Hernandez’s parents, who contend that their son was on Mexican soil at the time of the shooting, sued Mesa in federal district court in Texas, alleging violations of the Fourth and Fifth Amendments. After hearing the case en banc, the U.S. Court of Appeals for the Fifth Circuit ultimately ruled in favor of Mesa, concluding that Hernandez could not assert a Fourth Amendment claim and that Mesa was entitled to qualified immunity on the parents’ Fifth Amendment claim. -- There are three questions now before the Supreme Court: (1) whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents. -- To discuss the case, we have Steven Giaier, who is Senior Counsel for the House Committee on Homeland Security.

On February 22, 2017, the Supreme Court decided Life Technologies Corp. v. Promega Corp. Promega Corporation owned four patents for technology used in kits that can conduct genetic testing and was the exclusive licensee of a fifth patent. In 2010, Promega sued Life Technologies Corporation (LifeTech) for allegedly infringing on these patents. A jury found in favor of Promega but the district court nevertheless ruled for LifeTech, concluding that Promega had failed to present evidence sufficient to sustain the favorable jury verdict. The U.S. Court of Appeals for the Federal Circuit reversed that judgment, holding that the four Promega patents were ultimately invalid but agreeing that LifeTech had infringed the fifth patent and remanding to the district court for a determination of damages. In the course of its ruling, the Federal Circuit concluded that LifeTech’s supplying of a single, commodity component of a mulit-component invention had exposed LifeTech under federal law to damages liability on worldwide sales. -- The question before the Supreme Court was whether the Federal Circuit erred in holding that supplying a single, commodity component of a multi-component invention from the United States exposes a manufacturer to liability for worldwide sales. -- By a vote of 7-0, the Supreme Court reversed the judgment of the Federal Circuit and remanded the case. In an opinion by Justice Sotomayor, the Court held that the supply of a single component of a multicomponent invention for manufacture abroad does not give rise to liability under Section 271(f)(1) of the Patent Act, which prohibits the supply from the United States of "all or a substantial portion of the components of a patented invention" for combination abroad. Justice Sotomayor’s opinion was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justices Thomas and Alito joined the majority opinion as to all but Part II-C. Justice Alito filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined. Chief Justice Roberts was recused. -- To discuss the case, we have Howard J. Klein who is Attorney at Law at Klein, O’Neill & Singh, LLP.

On November 8, 2016, the Supreme Court heard oral argument in Bank of America Corp. v. City of Miami, which was consolidated with Wells Fargo & Co. v. City of Miami. In this case, the city of Miami sued Bank of America Corporation and similar defendants under the Fair Housing Act (FHA), arguing that the banks engaged in predatory lending practices that targeted minorities for higher-risk loans, which resulted in high rates of default and caused financial harm to the city. Miami also alleged that the banks unjustly enriched themselves by taking advantage of benefits conferred by the city, thus denying the city expected property and tax revenues. -- The district court dismissed the FHA claims and held that Miami did not fall within the “zone of interests” the statute was meant to protect and therefore lacked standing under the statute. The court also held that Miami had not adequately shown that the banks’ conduct was the proximate cause of the harms the city claimed to have suffered. The U.S. Court of Appeals for the Eleventh Circuit reversed, holding that FHA standing extends as broadly as Article III of the Constitution permits, that Miami had established Article III standing here, and that it had sufficiently alleged proximate causation. -- There are two questions now before the Supreme Court: (1) whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies. -- To discuss the case, we have Thaya Brook Knight, who is Associate Director of Financial Regulation Studies at the Cato Institute.

On January 18, 2017, the Supreme Court heard oral argument in Ziglar v. Abbasi, which was consolidated with the cases Ashcroft v. Abbasi and Hasty v. Abbasi. Ziglar v. Abbasi was part of a series of lawsuits brought by Muslim, South Asian, and Arab non-citizens who were who were detained after the terrorist attacks on September 11, 2001 and treated as “of interest” in the ensuing government investigation. These plaintiffs contended, among other things, that the conditions of their confinement violated their constitutional rights to due process and equal protection. The defendants included high-level officials in the Department of Justice (DOJ) such as Attorney General John Ashcroft, FBI director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, as well various detention officials. Some of the parties reached settlements, and the district court eventually dismissed some of the allegations against the DOJ officials for failure to state claim. The U.S. Court of Appeals for the Second Circuit affirmed the lower court’s dismissal of plaintiffs’ Free Exercise claims, but otherwise reversed most of the district court’s judgment. Plaintiffs, the Second Circuit held, had adequately pleaded claims for violations of substantive due process, equal protection, the Fourth Amendment, and civil conspiracy, and Defendants were not entitled to qualified immunity. Defendants then sought, and the Supreme Court granted, a petition for writ of certiorari. -- The questions now before the Supreme Court are threefold: (1) whether the Second Circuit, in finding that Plaintiffs’ due process claims did not arise in a “new context” for purposes of implying a remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, erred by defining “context” at too high a level of generality; (2) whether the Second Circuit erred in denying qualified immunity to Defendant Ziglar; and (3) whether the Second Circuit erred in holding that Plaintiffs’ Fourth Amendment Complaint met the pleading requirements identified by the Supreme Court in its 2009 decision in Ashcroft v. Iqbal. -- To discuss the case, we have Jamil N. Jaffer, who is Adjunct Professor of Law and Director of the Homeland and National Security Law Program at the Antonin Scalia Law School.

On January 18, 2017, the Supreme Court heard oral arguments in Lee v. Tam. Simon Tam of The Slants, an Asian American rock band, applied to register the band’s name with the U.S. Trademark Office, but the application was denied. The Office claimed that the name would likely be disparaging towards “persons of Asian descent,” citing the Disparagement Clause of the Lanham Act of 1946, which prohibits trademarks that “[consist] of or [comprise] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Tam appealed to a board within the Office but was again denied. On appeal to the U.S. Court of Appeals for the Federal Circuit, a panel of judges determined that the Office officials were within their rights to refuse the application. The Federal Circuit then reviewed the case en banc and found that the Disparagement Clause violated the First Amendment and that the Office should not have refused the application. -- The question before the Supreme Court is whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment. -- To discuss the case, we have Megan L. Brown, who is Partner at Wiley Rein LLP.

On December 6, 2016, the Supreme Court decided State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby. State Farm Fire and Casualty Co. (State Farm) administered separate wind and flood damage policies in the Gulf Coast area at the time of Hurricane Katrina. In general, State Farm was responsible for paying wind damage from its own assets, while federal funds would pay for flood damage. The Rigsby sisters were State Farm claims adjusters who allegedly discovered in the aftermath of Hurricane Katrina that, with respect to properties covered under both wind and flood policies, State Farm was unlawfully classifying wind damage as flood damage in order to offload the cost of payment onto the federal government. Rigsby sued on behalf of the United States under the provisions of the federal False Claims Act (FCA), and continued to litigate the case after the United States declined to intervene. The district court focused discovery and trial on a single bellwether claim, and the jury found an FCA violation and awarded damages. -- Both sides appealed, with the Rigsbys (classified under the FCA as “relators”) seeking additional discovery to uncover and pursue other similar FCA violations by State Farm--and State Farm arguing, among other things, that the case should be dismissed because the Rigsbys’ counsel had violated the FCA’s seal requirement, by disclosing the existence of the FCA lawsuit to various news outlets. The U.S. Court of Appeals for the Fifth Circuit acknowledged the seal violation but concluded (as the district court had)--after applying a multi-factor test--that the breach did not warrant dismissal here. -- The question before the Supreme Court was what standard governs the decision whether to dismiss a relator's claim for violation of the False Claims Act's seal requirement, an issue on which the federal circuit courts of appeals have split three ways. -- By a vote of 8-0, the Supreme Court affirmed the judgment of the Fifth Circuit. In an opinion by Justice Kennedy, the Court unanimously held that a seal violation does not mandate dismissal of a relator's complaint under the False Claims Act and that whether to dismiss is a matter left to the discretion of the district court. In this case, the Supreme Court added, the district court did not abuse its discretion in declining to dismiss the relator’s complaint. -- To discuss the case, we have Lawrence Ebner, who is the Founder of Capital Appellate Advocacy.

On December 6, 2016, the Supreme Court decided Samsung Electronics Co. v. Apple. In April 2011, Apple sued Samsung Electronics, alleging that Samsung’s smartphones infringed on Apple’s trade dress as well as various design patents for the iPhone. A jury awarded Apple nearly $1 billion in damages under Section 289 of the Patent Act, and the trial court upheld most of the award against Samsung’s post-trial challenges. On appeal, the U.S. Court of Appeals for the Federal Circuit rejected Samsung’s argument that the district court erred by allowing the jury to award damages based on Samsung’s profits off of its phones in their entirety, rather than just the portion of profits attributable to the smartphone components covered under the design patents. -- The question before the Supreme Court was whether, where a design patent is applied to only a component of a product, an award of infringer’s profits should be limited to those profits attributable to the component. -- By a vote of 8-0, the Supreme Court reversed the judgment of the Federal Circuit and remanded the case. In an opinion by Justice Sotomayor, the Court unanimously held that in the case of a multicomponent product, the relevant article of manufacture for arriving at a damages award under Section 289 need not be the end product sold to the consumer but may be only a component of that product. Whether the relevant article of manufacture in this particular case should be the entire smartphone or merely a component thereof is an issue the Court left open for resolution on remand. -- To discuss the case, we have Trevor Copeland, a Shareholder at Brinks Gilson & Lione, and Art Gollwitzer, a Partner at Michael Best & Friedrich LLP.

On November 29, 2016, the Supreme Court heard oral argument in Moore v. Texas. In 1980, Bobby James Moore was convicted of capital murder for the shooting of James McCarble, a seventy-year-old store clerk, in Houston, Texas. Moore was convicted and received a death sentence, which was affirmed on appeal. After a federal court granted habeas corpus relief, a new punishment hearing occurred in 2001, and Moore was again sentenced to the death penalty. His sentence was again affirmed on appeal. Moore sought state habeas relief and argued that, under the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia he was exempt from execution, because he was intellectually disabled. The state court granted habeas relief based on Moore’s Atkins argument, applying a definition of intellectual disability used by the American Association on Intellectual and Developmental Disabilities (AAIDD). The Court of Criminal Appeals of Texas reversed the grant, noting that the Texas legislature had not yet passed Atkins legislation and that the AAIDD definition of intellectual disability diverged from that previously adopted by Texas courts in the wake of Atkins--a 1992 definition used by AAIDD’s predecessor the American Association on Mental Retardation (AAMR), as well as the Texas Health and Safety Code. Moore, the Court of Criminal Appeals held, ultimately failed to establish by a preponderance of the evidence that he was intellectually disabled within the meaning of Atkins, as applied by Texas courts. -- The question before the U.S. Supreme Court is whether it violates the Eighth Amendment and the Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed. -- To discuss the case, we have Kent S. Scheidegger who is Legal Director and General Counsel for the Criminal Justice Legal Foundation.