On March 3, 2014, the United States Supreme Court granted certiorari in Integrity Staffing Solutions v. Busk, No. 13-433, which addresses whether time spent by employees in security screenings is compensable under the Fair Labor Standards Act (“FLSA”). Although every previous court to consider this issue had held that time spent in security screenings is not compensable, the Ninth Circuit departed from that line of authority and held that employees could state an FLSA claim under this theory. This case will likely have far-reaching implications for the business community, as a number of major employers—including Apple, Amazon.com, and CVS—are currently facing class-action FLSA claims seeking back pay for time spent in security screenings. Bancroft attorneys Paul D. Clement and Jeffrey M. Harris represent Petitioner Integrity Staffing Solutions in this matter. The Supreme Court is expected to hear arguments in the fall of 2014.
On January 31, 2014, Georgetown Law reported on Bancroft partner Erin Murphy’s participation as a panelist on the Supreme Court Institute’s 2013 Mid-Term Preview. Ms. Murphy joined “other standouts of the Supreme Court bar” in providing a look at upcoming cases on the Court’s docket.
On January 10, 2014, the United States Supreme Court granted review in American Broadcasting Companies, Inc., et al. v. Aereo, Inc., No. 13-461, a high-stakes copyright infringement petition filed by Bancroft. The case involves a company, Aereo, that captures over-the-air television broadcasts and, without obtaining authorization from or compensating anyone, retransmits that programming over the Internet for a profit. Petitioners, who own the copyrights in much of the programming Aereo retransmits, allege that Aereo is infringing upon their exclusive rights under the Copyright Act. The Supreme Court is expected to hear arguments this Term and issue a decision by late June.
On January 6, 2014, the Legal Times spotlighted Bancroft partner Paul Clement’s role in a lawsuit filed by Senator Ron Johnson of Wisconsin. Senator Johnson is challenging an Office of Personnel Management rule that allows lawmakers and their staff to receive subsidies for their health plans under the Affordable Care Act. Mr. Clement has been retained to consult on possible appellate issues.
On December 3, 2013, Bancroft partner Paul Clement argued before the United States Supreme Court on behalf of Northwest Airlines in Northwest v. Ginsberg, No. 12-462. The case involves a Northwest customer whose Platinum Elite membership in a frequent-flyer program was terminated after numerous abuses of the program. The question presented is whether the Airline Deregulation Act of 1978 preempts claims against airlines for violation of the implied covenant of good faith and fair dealing. Clement argued that “you can’t run a national, let alone international, airline if every one of your judgments about taking an unruly passenger off or taking out an abusive customer is going to be second-guessed by a jury.”
On November 19, 2013, Law360 reported on the multitude of diverse amici who have filed briefs in support of the petition for certiorari Bancroft filed on behalf of over a dozen broadcast networks in American Broadcasting Companies, Inc., et al. v. Aereo, Inc. Aereo is in the business of capturing over-the-air television broadcasts and, without obtaining authorization from or compensating anyone, retransmitting that programming over the Internet for a profit. As reported in the article, a number of major sports leagues, media conglomerates, labor unions, and legal scholars have filed amicus briefs urging the Supreme Court to grant certiorari, explaining that Aereo’s unauthorized retransmissions not only threaten basic copyright rules, but also risk significant economic harm to networks and their employees.
On November 14, 2013, E&E News reported on Mingo Logan Coal v. Environmental Protection Agency, a high-stakes case brought to the United States Supreme Court by Bancroft and its client, Arch Coal. The petition for writ of certiorari filed by Bancroft challenges the EPA’s unprecedented attempt to revoke a permit for material disposal sites properly issued by the Army Corps of Engineers in 2007. The article quotes Senator David Vitter, who strongly supports the filing and argues that “It’s unacceptable that a business in the United States would be forced to spend hundreds of man-hours to obtain a federal permit and in order to provide needed jobs for coal workers, only to see the EPA arbitrarily revoke the permit in an instant.”
On November 9, 2013, an interview with Bancroft partner Paul Clement aired on CNN discussing Bond v. United States. Clement had argued the case before the United States Supreme Court earlier in the week. The story explores the actions of Bancroft client Carol Anne Bond, who was prosecuted in federal court after being accused of violating the 1993 Chemical Weapons Convention following a domestic dispute that resulted in a thumb burn. Clement challenges the role of the federal government in this case, questioning “Is that something that really violated an international treaty, that really implicated international law? We would respectfully suggest that is not the case.”
On November 5, 2013, Bancroft attorney Paul Clement argued before the United States Supreme Court on behalf of the petitioner in Bond v. United States, No. 12-158. The case arises out of the federal government’s use of a statute designed to implement the United States’ treaty obligations under the 1993 Chemical Weapons Convention to prosecute petitioner for her attempt to exact revenge on her husband’s paramour by spreading toxic chemicals on her car handle, doorknob, and mailbox. Mr. Clement argued that the prosecution is not authorized by the statute, but that if it is, it exceeds the federal government’s limited powers under the Constitution.
On October 21, 2013, the National Law Journal reported on Bancroft client Carol Anne Bond and her constitutional challenge in Bond v. United States, which questions the right of the federal government to override a state’s ability to prosecute criminal cases in order to implement an international treaty, in this case the Chemical Weapons Convention. In the article, Bancroft partner Paul D. Clement argues, ”Domestic disputes culminating in a thumb burn neither implicate the concerns of the Chemical Weapons Convention nor come within Congress’ authority.”