On December 3, 2013, Bancroft attorney Paul Clement argued before the United States Supreme Court on behalf of the petitioners in Northwest, Inc. v. Ginsberg, No. 12-462. The case concerns the Airline Deregulation Act of 1978, which provides that states may not “enact or enforce a law, regulation or other provision having the force and effect of law related to a price, route, or service of an air carrier.” The Supreme Court has held that this provision does not preempt routine breach-of-contract claims but does preempt claims seeking an enlargement or enhancement of the parties’ bargain based on state law policies external to the agreement. The question presented is whether the Airline Deregulation Act preempts claims against airlines alleging a violation of the implied covenant of good faith and fair dealing. On October 15, 2013, Bancroft attorneys Paul D. Clement and George W. Hicks filed a reply brief on behalf of petitioners. The Court is expected to issue a ruling in 2014.
On November 13, 2013, Bancroft attorneys Paul D. Clement, Nathan A. Sales, and Jeffrey M. Harris filed a petition for writ of certiorari in the United States Supreme Court in Mingo Logan Coal Company v. Environmental Protection Agency, No. 13-599. In 2007, the Army Corps of Engineers issued a permit under section 404 of the Clean Water Act authorizing petitioner Mingo Logan to discharge fill material resulting from coal mining into several hollows in West Virginia. Years later, respondent EPA asked the Corps to revoke the permit. When the Corps refused, EPA sought to nullify the permit on its own by purporting to withdraw the disposal site “specifications” for the discharged material. The federal District Court in Washington, D.C. ruled that EPA had no authority to retroactively veto a permit duly issued by the Corps; the D.C. Circuit Court reversed. The question presented is whether EPA has the uncabined authority to withdraw disposal site specifications years after the Corps has issued a permit, thereby effectively nullifying a permit properly issued by the Corps. The Supreme Court is expected to consider the petition by spring 2014.
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. On remand from the Supreme Court’s unanimous 2011 holding, in a case also briefed and argued by Paul Clement, that petitioner had standing to challenge the constitutionality of her prosecution, the Third Circuit accepted the federal government’s argument that the Supreme Court’s 1920 decision in Missouri v. Holland renders the Constitution’s structural limits on federal power irrelevant whenever Congress legislates to implement a valid treaty. On September 16, 2013, Bancroft attorneys Paul D. Clement and Erin E. Murphy filed a reply brief on behalf of petitioner Carol Anne Bond. The questions presented are whether the Constitution’s structural limits on federal authority impose any constraints on Congress’ power to enact legislation to implement a valid treaty, and whether the chemical weapons statute should be interpreted not to reach ordinary poisoning cases like this one, so as to avoid the difficult constitutional questions that would otherwise arise.
On November 4, 2013, Bancroft attorney Candice Chiu filed a pro bono appeal pursuant to a Criminal Justice Act appointment in the United States Court of Appeals for the Second Circuit. The appellant-defendant was denied pretrial release by the district court pursuant to 18 U.S.C. § 3142(e), and has been incarcerated awaiting trial for 17 months. The brief contends that the district court’s decision was premised on several errors of law, including the failure to address why the conditions that Pretrial Services recommended could not reasonably assure his appearance at trial. Chiu will argue the case before the court on December 11, 2013.
In October 2013, Bancroft filed dispositive motions in the United States District Court for the District of Massachusetts on behalf of the plaintiff in K.G. Urban Enterprises v. Patrick, No. 11-cv-12070 (D. Mass.). Since October 2011, Bancroft has represented developer K.G. Urban Enterprises in constitutional litigation against the Commonwealth of Massachusetts regarding the Massachusetts Expanded Gaming Act. The Gaming Act divides Massachusetts into three regions, each of which is eligible for a resort-style casino. Two of the casino licenses (in the Boston area and Western Massachusetts) will be awarded on the merits through a rigorously competitive process. But the third license (in the Southeastern region) was set aside for Indian tribes, even though there is no Indian tribe in Massachusetts that is eligible for gaming under federal law. Bancroft challenged this explicit racial set-aside under the Equal Protection Clause and Supremacy Clause, and obtained a critical ruling from the First Circuit that cast serious doubt on the constitutionality of the Commonwealth’s actions. The district court is expected to rule on the case by early 2014. Bancroft attorneys Paul D. Clement, Jeffrey M. Harris, and Brian J. Field represent K.G. in this matter.
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. (Link) On September 5, 2013, Bancroft attorneys Paul D. Clement, Zachary D. Tripp and Michael H. McGinley prepared and filed a Motion to Dismiss of 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.
Supreme Court Docket
Joint Motion to Dismiss or Affirm
Joint Supplemental Brief
Joint Second Supplemental Brief
Supreme Court Decision Denying Application for Stay
Joint Memorandum in Opposition to Application for Stay
On October 11, 2013, Bancroft attorneys Paul D. Clement and Erin E. Murphy filed a petition for writ of certiorari in the United States Supreme Court in American Broadcasting Companies, Inc., et al. v. Aereo, Inc., No. 13-461. Respondent Aereo is in the business of capturing over-the-air television broadcasts and, without obtaining authorization from or compensating anyone, retransmitting that programming to tens of thousands of members of the public over the Internet for a profit. Petitioners brought suit against Aereo, alleging that this conduct infringes upon their exclusive right under the Copyright Act to perform their copyrighted works “publicly.” 17 U.S.C. §106(4). A divided panel of the Second Circuit rejected their claims, concluding that because Aereo uses thousands of miniature antennas to send each of its subscribers an individualized transmission of a performance from a unique copy of each copyrighted program, it is not transmitting performances “to the public,” but rather is engaged in tens of thousands of “private” performances to paying strangers. The question presented by the petition is whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet. The Supreme Court is expected to consider the petition by the end of 2013.
On October 8, 2013, Bancroft attorneys Paul D. Clement and George W. Hicks filed a petition for writ of certiorari in the United States Supreme Court in Official Committee of Unsecured Creditors of Quebecor World (USA) Inc., v. American United Life Insurance, No. 13-455. The petition presents the question whether Section 546(e) of the Bankruptcy Code, which provides an exception to a bankruptcy trustee’s power to avoid preferential or fraudulent transfers when those transfers are “made by or to (or for the benefit of) a … financial institution,” applies when the financial institution acts as a mere conduit for the transferred property, or whether the financial institution must have a beneficial interest in the transferred property. In the decision below, the Second Circuit joined the Third, Sixth, and Eighth Circuits in holding that a financial institution need only act as a mere conduit for the exception to apply; the Eleventh Circuit, by contrast, has held that a financial institution must have a beneficial interest in the transferred property.
On October 8, 2013, Bancroft counsel Erin Murphy presented argument in the Supreme Court of the United States on behalf of Appellant Shaun McCutcheon in McCutcheon v. Federal Election Commission, No. 12-536. The case concerns whether the aggregate contribution limits imposed by the Bipartisan Campaign Reform Act (“BCRA”) violate the First Amendment. 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 circumvention concerns, they are a manifestly overbroad means of doing so. The Supreme Court will issue a decision 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. On May 3, 2013, Bancroft lawyers Paul D. Clement and Jeffrey M. Harris filed a brief in the United States Supreme Court on behalf of the petitioners Willis Limited and Willis of Colorado. 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.