U S Supreme Court October Term 2016 Preview
U. S. Supreme Court October Term 2016 Preview Faegre Baker Daniels LLP Greene Espel PLLP Jeff Justman John Baker Aaron Van Oort Karl Procaccini Liz Wright October 19, 2016
Overview ►High-profile ► Criminal cases in: law and procedure ► Intellectual property ► Constitutional ► Civil law procedure and jurisdiction ► Federal statutory claims
Criminal Law
Criminal law cases ► Pena-Rodriguez ► v. Colorado Whether a no-impeachment rule may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury
Criminal law cases ► Buck ► ► v. Davis Did the Fifth Circuit err in denying a Certificate of Appealability on the basis of ineffective assistance where the petitioner’s attorney presented an expert witness who testified the petitioner was more like to be dangerous in the future because of his race Empirical evidence presented by petitioner: ► COA denial rate in the 4 th Circuit: 6. 3% ► COA denial rate in the 5 th Circuit: 58. 9% ► COA denial rate in the 11 th Circuit: 0%
Criminal law cases ► Moore ► v. Texas Standards for the definition of intellectual disability under Atkins v. Virginia, which held that persons with intellectual disability may not be sentenced to death under the Constitution ► The “Lennie Standard” ► Shaw ► v. United States Whether the federal bank fraud statute’s “scheme to defraud a financial institution” requires proof not only to deceive but also to cheat a bank
Salman v. United States ► Question ► In a case concerning tippee liability for insider trading, to prove the required “personal benefit” to the insider, is it necessary to show a monetary or tangible benefit to the insider, or is it sufficient that the tipper and the tippee are close family members? ► Key ► ► ► Presented Facts Insider shared material facts with brother, who in turn shared information with the defendant (the insider’s brother -in-law) Over four years, and as a result of trades based on insider information, the defendant grew $396, 000 to $2. 1 million No evidence that the insider enjoyed monetary or other tangible benefits as result of the tips provided
Salman v. United States ► May resolve issues raised by the Second Circuit in Newman ► ► At ► Dirks v. SEC (1983) established the “personal benefit” for insider trading liability In U. S. v. Newman, the Second Circuit held, in the case of a tip to a friend, there must be proof of “an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature” The Ninth Circuit concluded that the personal benefit requirement is satisfied where the tipper and tippee are close family members; no proof of potential or actual pecuniary gain is required oral argument Justice Breyer: Helping a family member “is like helping yourself”
Intellectual Property
Intellectual property cases ►Samsung ► Design patent damages ►Life ► Electronics v. Apple Technologies Corp v. Promega Corp. Scope of extraterritorial patent infringement ►Hygiene Products v. First Quality Baby Products ► Can laches bar a patent claim brought within the statute of limitations? ►Star ► Copyright protection for useful articles ►Lee ► Athletica LLC v. Varsity Brands, Inc. v. Dam Registration of disparaging trademarks
Samsung Electronics v. Apple ► “Where a design patent is applied to only a component of a product, should an award of infringer’s profits be limited to those profits attributable to the component? ” D 618, 677: Black rectangular front face with rounded corners D 604, 305: particular grid of sixteen colorful icons on a black screen D 593, 087: rectangular front face with rounded corners, but with the addition of a “bezel, ” or
Samsung Electronics v. Apple ► District court awarded infringer’s profits in the amount of Samsung’s entire profits on sales of its accused phones $3 m 9 9 n o i ill
Samsung Electronics v. Apple “Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties. ” 35 U. S. C. § 289. “Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title. ” 35 U. S. C. § 171.
Samsung Electronics v. Apple Solicitor General’s Four Factor Test 1. Compare the scope of the patented design as shown in the drawings in the patent; 2. Examine how prominently that design features in the accused article; 3. Consider whethere are other conceptually distinct innovations or components in the article that are not part of or associated with the patented design; and 4. Compare the physical relationship between the patented design and the rest of the article.
Life Technologies Corp v. Promega Corp. ► “Whether the Federal Circuit erred in holding that supplying a single, commodity component of a multi-component invention from the United States is an infringing act under 35 U. S. C. § 271(f)(1), exposing the manufacturer to liability for all worldwide sales. ” ► “Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer. ” 35 U. S. C. § 271(f)(1).
Hygiene Products v. First Quality Baby Products ► “Whether and to what extent the defense of laches may bar a claim for patent infringement brought within the Patent Act’s six-year statutory limitations period, 35 U. S. C. § 286. ” ► “Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action. ” 35 U. S. C. § 286. ► “Laches, we hold, cannot be invoked to preclude adjudication of a [copyright] claim for damages brought within the three-year window. ” Petrella v. MGM, Inc. , 134 S. Ct. 1962, 1965 (2014).
Hygiene Products v. First Quality Baby Products ► “Whether and to what extent the defense of laches may bar a claim for patent infringement brought within the Patent a r e d e F Act’s six-year statutory limitations period, 35 U. S. C. § 286. ” e 1 h. t n w 4 7 ie 9 1 ► “Except as otherwise provided by law, no rev t a o. t t n C recovery shall be had for any infringement o. i S s a 4 c 3 committed more thano sixcyears prior to the 1 , a d or counterclaim l l a e h r filing of theocomplaint for t t e P n e ”. v infringement ino the action. ” 35 U. S. C. § 286. n a h i t We s posi ’ we hold, cannot be invoked to t ► “Laches, i u irc preclude adjudication of a [copyright] claim for damages brought within the three-year window. ” Petrella v. MGM, Inc. , 134 S. Ct. 1962, 1965 (2014).
Star Athletica LLC v. Varsity Brands, Inc. ► “What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act? ” ► “[T]he design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. ” 17 U. S. C. § 101.
Lee v. Dam ► “Whether the disparagement provision in 15 U. S. C. 1052(a) is facially invalid under the Free Speech Clause of the First Amendment. ” ► “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it. . . [c]onsists of. . . matter which may disparage. . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute. ” 15 U. S. C. § 1502(a).
Constitutional Law
Other Constitutional Law: Pending Cases ► Murr ► v. Wisconsin Selection of the relevant “parcel” in a takings claim, where plaintiff also owns one or more adjacent parcel ► Trinity ► Lutheran Church v. Pauley Whether exclusion of churches from a neutral secular aid program violates Free Exercise, Equal Protection Clauses ► Bethune ► Use of race in redistricting ► Lynch ► Hill v. Va. Bd. Of Elections v. Morales-Santana Whether immigration statute’s physical-presence requirement for unwed citizen mothers of foreign-born children violates Equal Protection Clause
Other Constitutional Law: Pending Cases (cont’d) ► Mc. Crory ► When district court’s failure to recognize racial gerrymandering is clearly erroneous and thus reversible ► Manuel ► v. City of Joliet Whether the Fourth Amendment includes right against malicious prosecution, and if so, using which standard ► Lynch ► v. Harris v. Dimaya For purposes of federal immigration law, is the current definition of “crime of violence” unconstitutionally vague in light of Johnson v United States ► Hernández ► v. Mesa Whether Fourth Amendment applies to a cross-border shooting, and if so, whether a damages remedy is available against the guard
Other Constitutional Law: Pending Cases (cont’d) ► Ziglar, ► Ashcroft, Hasty and others v. Turkman Whether a civil remedy is available against federal officials sued for post-9/11 counterterrorism under Bivens, or Section 1985(3), and if so, whether the officials are entitled to qualified immunity, and whether the Iqbal pleading standard was applied too lightly
Expressions Hair Design ► Expressions ► ► ► Hair Design v. Schneiderman Question presented: Whether this New York statute forbidding retailers from attaching surcharges for credit card use regulates speech and not conduct for purposes of the First Amendment: “No seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means. ” Range: Eleven states (including four especially populous ones – California, New York, Texas and Florida) have similar statutes ► None in the Eighth Circuit, however ► Conflicts: Federal challenges in New York, Texas, and Florida since 2013 have created a circuit split ► A fourth challenge – in California – was successful, and is on
Expressions Hair Design ► Why the retailers believe these kinds of statutes are subject to First Amendment scrutiny ► In theory, a retailer could want to pass through a bank’s “swipe fees” (usually 2 -3%) in varying ways: 1. 2. ► ► Imposing a surcharge on credit-card users (so that a coat with a regular price of $100 costs a credit-card user $103 plus tax) , or Offering a discount from the regular price to customers who use cash (so that the same coat, with the same regular price, costs a cash customer something less than $100 plus tax). The law forbids Option 1 (also disliked by customers), not Option 2 Plaintiff wants to set two different regular prices, based on payment method, but fears it’ll constitute Option 1
Expressions Hair Design ► The ► Second Circuit (September 2015) : This regulates conduct (pricing schemes) and not just speech. ► “the fact that these pricing schemes have different labels (and thus that sellers are likely to refer to them using different words) obviously does not mean that all they are is labels. ” ► ► 2 -1 In March 2016 the Fifth Circuit agreed (regarding the Texas statute) majority of the Eleventh Circuit (December 2015): ► “The [Florida] no-surcharge law is content based: it applies only to how a merchant may frame the price difference between cash and credit-card payments. ” ► It “is speaker based: it applies only to those merchants who accept payment by both cash and credit card and engage in dual-pricing. ”
Jurisdiction and Procedure
Jurisdiction and procedure cases ► Microsoft ► Corp v. Baker Whether a court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims ► Venezuela ► Whether the pleading standard for a FSIA claim is more demanding than the standard for ordinary federal question claims ► Lightfoot ► v. Cendant Mortgage Co. Whether Fannie Mae’s charter confers original jurisdiction in the federal courts of every case brought by or against Fannie Mae ► Mc. Lane ► v. Helmerich & Payne Drilling Co. v. EEOC Whether a district court’s decision to quash or enforce an
Microsoft v. Baker ► Question ► “Whether a federal court of appeals has jurisdiction under both Article III and 28 U. S. C. § 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice” ► Key ► presented facts District court twice denied class certification of claims against Microsoft about XBOX 360 ► Plaintiffs then dismissed their case voluntarily so they could appeal order striking class allegations
Cases involving federal statutory claims ► Bank ► ► of America v. Miami What plaintiffs bringing racial-discrimination-in-housing claims under the Fair Housing Act must plead in terms of causation and injury Visa v. Osborn and Visa v. Stoumbos ► Whether alleging that credit card companies and banks agreed on fees to be charged to use ATM machines sufficed to plead a Sherman Act claim ► Czyewski ► Whether a bankruptcy court may authorize the distribution of settlement proceeds in a manner that violates the bankruptcy code’s priority scheme ► State ► v. Jevic Holding Corp. Farm v. U. S. ex rel. Grigsby What standard governs the decision whether to dismiss a relator's claim for violation of the False Claims Act's seal
Bank of America v. Miami ► Basic issue: Whether city governments are among those whom Congress has given permission to sue to enforce the equality guarantees of the Fair Housing Act ► Key facts: Miami sued Bank of America and other residential mortgage lenders. Its “ambitious” theory alleged that: ► ► ► The bank targeted black and Latino customers in Miami for predatory loans that carried more risk, steeper fees, and higher costs By steering minorities toward these predatory loans, Bank of America caused minority-owned properties throughout Miami to fall into foreclosure The City was then deprived of tax revenue and had to spend more on municipal services (such as police, firefighters, trash
Bank of America v. Miami ► Issues: ► Constitutional standing ► Injury in fact? ► Statutory standing ► Aggrieved person? ► Causation ► Proximate cause?
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