Significant Matters

Giddens v. Barclays Capital

On December 15, 2014, Bancroft attorneys Paul D. Clement, George W. Hicks Jr., and Barbara S. 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.

Petition for Writ of Certiorari 

Arizona State Legislature v. Arizona Independent Redistricting Commission

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.

Court Skeptical of Arizona Plan for Less-Partisan Congressional Redistricting, The New York Times 

Supreme Court Skeptical of Arizona Initiative on Congressional Districting, The Wall Street Journal

Literalism vs. the power of the people, SCOTUSblog

NCAA v. Governor of New Jersey II

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.

Response Brief of Appellees, NCAA v. Governor of New Jersey

United States v. Martoma

On February 2, 2015, Bancroft filed an opening brief on appeal before the United States Court of Appeals for the Second Circuit in United States v. Martoma, No. 14-3599.  Mathew Martoma, a former hedge fund manager, was convicted of trading on inside information from an expert consultant about a clinical trial for the Alzheimer’s drug bapineuzumab. Bancroft attorneys Paul Clement, Erin Murphy, and Harker Rhodes argued that the government failed to prove a necessary element of its case at trial because there was no evidence that the consultant received any personal benefit for allegedly providing Mr. Martoma the key information. They also argued that the trial was flawed because the district court excluded vital evidence of Mr. Martoma’s innocence, including critical expert witness testimony and deposition testimony from the owner of the hedge fund where Martoma worked, and because the government improperly excluded a potential juror on the basis of race. Finally, they argued that the nine-year sentence imposed on Mr. Martoma—one of the longest ever in an insider trading case—is procedurally unreasonable because it is based on millions of dollars in gain to people other than Mr. Martoma himself.

Martoma Opening Brief for Appellees

Lighting Ballast Control v. Universal Lighting Technologies

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.

Petition for Writ of Certiorari

John Council, Big Texas Patent Case Is Back On, Texas Lawyer (Jan. 26, 2015)

Integrity Staffing Solutions v. Busk

On December 9, 2014, Bancroft secured a unanimous victory before the U.S. Supreme Court in Integrity Staffing Solutions v. Busk, No. 13-433.  The question presented was whether post-shift security screenings are compensable activities under the Fair Labor Standards Act and Portal-to-Portal Act.  Bancroft represented Integrity Staffing Solutions, a company that provides staffing for warehouses owned by Amazon.com.  The respondents were a nationwide class of former Integrity employees who sought back pay, overtime, and double damages under the FLSA for time spent passing through security screenings at the end of their shifts.  Every previous court to consider this issue had held that time spent in security screenings is not compensable under the FLSA.  But in this case, the Ninth Circuit departed from that unbroken line of authority and held that the respondents could state a claim under the FLSA.

The Supreme Court unanimously reversed the Ninth Circuit’s decision and held that security screenings are not compensable because they are not an “intrinsic element” of employees’ principal job duties.  This decision will likely result in the dismissal of dozens of class-action suits seeking damages under the FLSA for time spent in security screenings.  Paul D. Clement argued the case for Integrity Staffing and Jeffrey Harris and Barbara S. Grieco assisted with the briefing.

Petition for Writ of Certiorari
Opening Brief
Supreme Court Opinion

Arizona State Legislature v. Arizona Independent Redistricting Commission

On October 2, 2014, the United States Supreme Court agreed to review on the merits the appeal in Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314.  Bancroft attorneys Paul D. Clement, George W. Hicks, Jr., and Taylor Meehan represent appellant Arizona State Legislature.  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 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 hear arguments in early 2015.

Krys v. Farnum Place, LLC

On September 26, 2014, Bancroft attorneys Paul D. Clement and George W. Hicks, Jr., obtained a unanimous victory in the United States Court of Appeals for the Second Circuit in Krys v. Farnum Place, LLC (In re: Fairfield Sentry Limited), No. 13-3000.  In 2010, Bancroft client Kenneth Krys, the liquidator and foreign representative of Fairfield Sentry Limited, a British Virgin Islands entity, signed an agreement to trade to Farnum Place its claim on the estate of Bernard Madoff under the Securities Investor Protection Act (SIPA).  Days later, the value of the SIPA claim dramatically increased due to an unrelated settlement by the Madoff estate.  Krys asked the United States Bankruptcy Court to prohibit the trade under section 363 of the Bankruptcy Code as no longer financially justifiable.  The bankruptcy court refused even to conduct a section 363 hearing because, in its view, the SIPA claim was not “property within the territorial jurisdiction of the United States,” as required in cross-border bankruptcy proceedings under Chapter 15 of the Code, and also out of comity to the BVI courts’ assessment of the transaction’s validity.  The district court affirmed.  The Second Circuit vacated and remanded with directions for the bankruptcy court to conduct the section 363 hearing.  It concluded that the SIPA claim was “property within the territorial jurisdiction of the United States” and that comity did not require deferral to the BVI courts.  The court also held that, in deciding whether valid business reasons for the trade remain, the bankruptcy court “must consider” the increase in the value of the SIPA Claim after the parties entered into the trade.  The decision is the first by a federal court of appeals to address the interplay between two portions of the Bankruptcy Code:  Chapter 15, which concerns cross-border insolvencies, and section 363, which concerns U.S. bankruptcy court approval of sales of estate property outside the ordinary course of business.

Court Decision

United States v. Warner

On September 17, 2014, Bancroft attorney Paul Clement presented oral argument before the United States Court of Appeals for the Seventh Circuit in United States v. Warner, No. 14-1330.  The case involves the government’s appeal of a probation sentence imposed on H. Ty Warner for committing one count of tax evasion in connection with failure to disclose an offshore bank account.  In a brief filed on July 9, 2014, Clement and Bancroft attorney Erin Murphy argued that the District Court acted well within its discretion in concluding that Mr. Warner’s many extraordinary acts of charity and kindness throughout his life, combined with the complete absence of any risk of recidivism and the deterrence achieved by, inter alia, the more than $50 million civil fine that he has paid, all combine to make a probation sentence—the sentence most commonly imposed in offshore tax cases—appropriate in the unique circumstances of this case.

Defendant-Appellee Brief

Smith v. Delta Air Lines

On April 17, 2014, Bancroft attorneys Paul D. Clement and Jeffrey M. Harris secured victory for Delta Air Lines before the U.S. Court of Appeals for the Eleventh Circuit in Dennis Smith v. Delta Air Lines, Inc. et al., No. 13-15155.  A former employee brought a class-action suit against Delta under ERISA after he participated in Delta’s Employee Stock Ownership Plan and lost money when the price of Delta stock declined between 2000 and 2004.  The District Court dismissed the claim, and the Eleventh Circuit affirmed.  The plaintiff argued that it was “imprudent” for the Plan to continue investing in Delta stock while the company was encountering financial difficulties, but the Eleventh Circuit disagreed.  The court noted that it was “not at all obvious at the time” that the investments were imprudent, and that “a reasonable fiduciary could have concluded that investments in Delta stock during the class period remained appropriate.”

The plaintiffs also sought panel rehearing and rehearing en banc in light of the Supreme Court’s recent decision in Fifth Third Bancorp v. Dudenhoeffer, No. 12-751, but the Eleventh Circuit unanimously denied that petition on September 10, 2014.

Opinion
Brief for Appellees