On December 15, 2014, Bancroft attorneys Paul D. Clement, George W. Hicks Jr., and Barbara Smith Grieco filed a petition for writ of certiorari in the United States Supreme Court on behalf of the petitioner in James W. Giddens, as Trustee for the SIPA Liquidation of Lehman Brothers Inc. v. Barclays Capital Inc., Barclays Bank PLC. At the height of the financial crisis, Lehman’s North American investment banking and capital markets business was sold to respondent Barclays pursuant to Section 363. Interested parties to the transaction, including petitioner—the trustee for Lehman’s U.S. affiliate under the Securities Investor Protection Act of 1970, (“SIPA”)—and creditors and government agencies were provided notice and told in open court that the sale would not involve any cash leaving the estate. On the basis of those representations, petitioner assented to, and the bankruptcy court approved, the sale. Subsequently, however, and without any notice to, hearing before, or approval by the bankruptcy court, the parties privately changed the terms of the deal in a way that Barclays claims entitles it to some $4 billion in cash. When Barclays tried to collect on this claim, the bankruptcy court rightly rejected that attempt in light of the procedural safeguards Section 363 affords to interested parties like petitioner. But the district court and Second Circuit held otherwise, permitting the subsequent agreement to trump the conflicting statements made to the bankruptcy judge. The question presented is: whether, consistent with Section 363(b)(1) of the Bankruptcy Code and the Due Process Clause, a subsequent written agreement that materially changes the terms of a sale presented to and approved by a bankruptcy court can trump the contemporaneous representations made to and relied on by that court during the Section 363 hearing. The Supreme Court is expected to consider the petition in the spring of 2015.
On March 10, 2015, Bancroft partner Paul Clement argued on behalf of the International Franchise Association and several Seattle franchisees in the United States District Court for the Western District of Washington. A recently enacted Seattle ordinance, which is set to go into effect on April 1, 2015, singles out small franchised businesses for adverse treatment by forcing those businesses to adopt Seattle’s new minimum wage—the highest in the Nation—at an accelerated rate compared to their non-franchised competitors. The IFA and Seattle franchisees argued to the court that singling out franchised businesses for adverse treatment runs afoul of the Commerce Clause and other constitutional guarantees and asked the district court to enjoin the offending portions of the ordinance. If the IFA prevails, the result will be that small franchised businesses in Seattle will be treated the same as their similarly-situated non-franchised competitors.
The Seattle Times, Editorial, Seattle’s minimum-wage law unfairly discriminates against franchise owners, available at: http://www.seattletimes.com/opinion/editorials/seattles-minimum-wage-law-unfairly-discriminates-against-franchise-owners/
On March 2, 2015, Bancroft attorney Paul D. Clement presented oral argument in the United States Supreme Court in Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314, on behalf of appellant Arizona State Legislature. Bancroft attorneys George W. Hicks, Jr., Taylor Meehan, and Raymond P. Tolentino assisted with the briefing. The question presented is whether the Elections Clause of the United States Constitution and 2 U.S.C. § 2a(c) permit the displacement of the Arizona State Legislature’s redistricting authority by an independent commission. The Court also requested briefing and argument on the question whether the Arizona State Legislature has standing to bring this suit. Arizona voters passed Proposition 106, which amended the state constitution to remove redistricting authority from the state legislature and place it in the hands of the Arizona Independent Redistricting Commission. But the Elections Clause provides that the “Times, Places and Manner” of holding congressional elections “shall be prescribed in each State by the Legislature thereof.” In a divided decision, a three-judge district court panel held that this displacement of the Arizona Legislature’s redistricting authority does not violate the Elections Clause. The Supreme Court is expected to issue a decision no later than June 2015.
On February 13, 2015, Bancroft attorneys Paul Clement, Erin Murphy, Will Levi, and Taylor Meehan filed a response brief in the United States Court of Appeals for the Third Circuit on behalf of the NCAA, NBA, NFL, NHL, and the Office of the Commissioner of Baseball. This appeal is the second round of litigation involving New Jersey’s efforts to once again circumvent the Professional and Amateur Sports Protection Act of 1992 (PASPA), a federal law prohibiting the spread of state-sponsored sports gambling. After the Sports Organizations successfully defeated the state defendants in the first round of litigation, the New Jersey Legislature passed new legislation allowing exclusively Atlantic City casinos and New Jersey racetracks to offer sports gambling. The Sports Organizations successfully moved for summary judgment enjoining that new legislation, and the state defendants appealed. On appeal, the Sports Organizations explain that the newly passed state legislation unlawfully authorizes Atlantic City casinos and New Jersey racetracks to offer sports gambling and is no different in effect than New Jersey’s predecessor law so clearly in violation of PASPA.
After “another stunning year,” The Legal 500 recognized Bancroft as the 2014 “Supreme Court and Appellate Team of the Year.” Highlighting the firm’s victories in Bond v. United States, Northwest v. Ginsberg, and McCutcheon v. FEC, the award announcement declared that Bancroft “continues to be a natural choice to conduct difficult and high-profile matters before the highest court in the land.”
On February 2, 2015, Bancroft attorneys Paul Clement, Viet Dinh, and Jeffrey Harris, along with co-counsel Jonathan Massey of Massey & Gail, filed an amicus brief on behalf of Stop Child Predators, the Digital Citizens Alliance, the Taylor Hooton Foundation, and Ryan United in Google v. Hood, No. 14-cv-981 (S.D. Miss.). In this case, Google seeks a federal court order prohibiting the Mississippi Attorney General from investigating whether Google’s services are being used for unlawful purposes. Bancroft represents a coalition of public interest groups that seek to prevent the exploitation of children and the distribution of dangerous drugs online. The amicus brief argues that the Attorney General’s investigation should be allowed to proceed, and that Google has adequate remedies to challenge the investigation in state court.
On February 3, 2015, Bancroft attorneys Paul Clement, Erin Murphy, and Raymond Tolentino filed a petition for rehearing in the Supreme Court of the United States on behalf of petitioner Bobby Chen in Chen v. Mayor & City Council of Baltimore, Maryland, et al., No. 13-10400. In November 2014, the Supreme Court granted Mr. Chen’s pro se petition for certiorari to resolve an open and acknowledged circuit split regarding the proper interpretation of Federal Rule of Civil Procedure 4(m). Due to an unfortunate set of circumstances, Mr. Chen remained unaware that the Supreme Court granted his petition until late January 2015, after the Supreme Court dismissed certiorari due to Mr. Chen’s inadvertent failure to file his opening brief. After learning of the dismissal, Mr. Chen reached out to Bancroft to assist him in reviving his case before the Supreme Court.
Brent Kendall, Missing Supreme Court Litigant Resurfaces, Aims to Revive Case, The Wall Street Journal (Feb. 4, 2015)
On January 26, 2015, Bancroft attorneys Paul D. Clement and George W. Hicks, Jr., secured a victory in the Supreme Court of the United States for Bancroft client Lighting Ballast Control LLC in Lighting Ballast Control v. Universal Lighting Technologies, No. 13-1536, when the Court granted the petition for certiorari filed by Bancroft, vacated the judgment of the en banc United States Court of Appeals for the Federal Circuit holding against Lighting Ballast, and remanded the case to the Federal Circuit. The en banc Federal Circuit had ruled against Lighting Ballast after reaffirming its so-called “Cybor rule,” under which factual findings underlying patent claim construction are reviewed de novo. The petition for certiorari had presented two questions: first, whether factual findings underlying a district court’s construction of patent claims must be reviewed for clear error, rather than de novo; and second, whether there is an exception for “purely legal” issues to the general rule that an issue raised only in a failed summary judgment motion and not raised in a motion for judgment as a matter of law is forfeited on appeal. Reflecting its disagreement with the Cybor rule and its application to Lighting Ballast, the Court vacated the Federal Circuit’s judgment and remanded the case for further consideration in light of the Court’s decision in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc.
John Council, Big Texas Patent Case Is Back On, Texas Lawyer (Jan. 26, 2015)
On January 16, 2015, Above the Law recognized Bancroft as the “Top Litigation Firm by Law School Pedigree.” Bancroft stood atop the list of 48 litigation boutiques and larger firms that classify a majority of their attorneys as litigators. According to Above the Law, which averaged the U.S. News rankings of each lawyer’s law school, Bancroft attorneys attended schools with a median rank of 2; 75% graduated from Harvard, Yale, or Stanford.
Above the Law, Top Litigation Firms by Law School Pedigree (Jan. 16, 2015)
On December 15th, 2014, Bancroft attorneys Paul Clement, Erin Murphy and Candice Wong secured a victory for two of their clients in a highly unusual manner: by convincing the government to abandon their prosecutions. Dr. Anindya Kumar Sen and his wife, Patricia Posey Sen, were convicted of 29 counts of introducing misbranded drugs into interstate commerce for unwittingly having received prescription drugs that were misbranded by the distributor that sent them. After Bancroft argued in its opening appellate brief that neither the statute nor the Constitution permits imposition of strict criminal liability for the mere receipt of misbranded drugs, the government took the remarkable step of moving to vacate the Sens’ convictions and dismiss the indictment with prejudice. As the Wall Street Journal reported, this exceeding rare development is likely to have broad ramifications on future prosecutions under 21 U.S.C. 331(a).
Joe Palazzolo, Justice Department Takes Rare Step of Dropping Misbranding Case, The Wall Street Journal (December 16, 2014)