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.”
On October 15, 2013, the Supreme Court ruled in favor of Bancroft’s clients and dismissed California’s appeal in Brown v. Plata, No. 13-198, for want of jurisdiction. California was appealing decisions of a three-judge district court requiring California to comply with an injunction that the Supreme Court had previously affirmed in a 2011 decision in the same case. That order required California to reduce its prison population to 137.5% of design capacity within two years to remedy longstanding grave violations of the Eighth Amendment arising from grossly inadequate medical and mental health care in California’s prisons. California argued that the Supreme Court had mandatory jurisdiction over its renewed appeal. California had previously sought a stay from the Supreme Court, which Bancroft successfully defended against. On September 5, 2013, Bancroft attorneys Paul D. Clement, Zachary D. Tripp and Michael H. McGinley prepared and filed a Motion to Dismiss or Affirm with the Supreme Court on behalf of appellees Marciano Plata and Ralph Coleman, arguing that there was no jurisdiction because the orders below did not grant or deny an injunction, as required by 28 U.S.C. § 1253. The Supreme Court agreed, dismissing the case for lack of jurisdiction.
On October 8, 2013, Bancroft attorney Erin Murphy presented argument in the U.S. Supreme Court on behalf of Shaun McCutcheon and the Republican National Committee, appellants in the case McCutcheon v. Federal Election Commission, No. 12-536. In her first oral argument before the Supreme Court, Ms. Murphy argued that the aggregate contribution limits imposed by the Bipartisan Campaign Reform Act (“BCRA”) violate the First Amendment. In the briefing, Ms. Murphy argued that the government has failed to meet its burden of demonstrating that BCRA’s aggregate contribution limits prevent any cognizable corruption or circumvention. Ms. Murphy also argued that, even if BCRA’s aggregate limits address some small measure of corruption or circumvention concerns, they are a manifestly overbroad means of doing so. The Supreme Court is expected to issue a decision by next spring.
On October 7, 2013, Bancroft partner Paul D. Clement presented argument in the Supreme Court of the United States on behalf of the petitioners in Willis of Colorado, et al., v. Troice, No. 12-86. This case concerns the Securities Uniform Litigation Act of 1998 (“SLUSA”), which precludes certain state-law securities claims from being litigated as class actions. The question presented is whether a complaint that unquestionably includes SLUSA-covered allegations can nonetheless escape preclusion if the plaintiffs also allege other misrepresentations that are farther removed from covered securities. This case will likely have far-reaching implications for third-party defendants (such as banks, law firms, and insurance companies) that are sued as “aiders and abettors” of another party’s fraud. Paul D. Clement and Jeffrey M. Harris prepared the briefing.
On September 26, 2013, the Legal Times reported that Bancroft counsel Erin E. Murphy has been hired to represent Alabama businessman Shaun McCutcheon and the Republican National Committee in McCutcheon v. Federal Election Commission, challenging the federal biennial limit on individual contributions. In regard to Murphy, RNC chief counsel John Phillippe affirmed, ”We have a great legal team and are looking forward to presenting our case to the Court in October.”