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NEW & NOTEWORTHY

  
  • The U.S. Supreme Court issued two more opinions on March 25, 2015.

    In a 5-4 decision, the Court sharply split on whether the appellants in Alabama Legislative Black Caucus v. Alabama properly raised racial gerrymandering claims before the trial court, perhaps sending a signal that even poorly pled and argued claims should receive a favorable ear. The majority opinion authored by Justice Breyer, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan, held that the trial court misapplied the law under Section 5 of the Voting Rights Act in rejecting the appellants’ claims, while the dissenters, lead by Justice Scalia, argued that those claims were so confusing and opaque, or outright waived, that there was no error. For example, the majority opinion held that the trial court must analyze racial gerrymandering with regard to one or more specified electoral districts, and not the state as a whole—a principle the dissenters agreed with. The disagreement was whether the appellants had actually raised that argument in the first place. The majority even identified a particular district that it believed violated Section 5 had the trial court applied the proper analysis. Justice Thomas filed a separate dissent arguing that the Court’s jurisprudence for the Voting Rights Act was flawed, and has created segregated districts contrary to its ultimate intent. A link to the opinion is here.

    The Court in Young v. UPS wound up rejecting the parties’ and the federal government’s interpretations of the Pregnancy Discrimination Act to hold that a pregnant worker can make out a prima facie case of discrimination under the framework set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973) by (1) showing she was pregnant, (2) sought accommodation from her employer, (3) the employer did not accommodate her, and (4) the employer did accommodate others similar in their ability or inability to work. If the employer presents a legitimate, nondiscriminatory reason for its actions, the claimant may still reach a jury by providing sufficient evidence that the employer’s policies impose a “significant burden” on pregnant workers, and the employer’s reasons are not “sufficiently strong” to justify the burden. The majority opinion, penned by Justice Breyer and joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor, and Kagan, rejected the expansive “most favored nation” rights sought by the pregnant employee, but also declined the narrow reading offered by UPS and the views of the EEOC. Justice Alito, concurring in the judgment only, provided his interpretation of the Act that came to the same result as the Court, with slightly different emphases. Justice Scalia, joined by Justices Kennedy and Thomas, dissented, arguing that the Court made up the “significant burden” and “sufficiently strong” tests out of whole cloth, “splendidly unconnected with the text and even the legislative history of the Act.” The dissenters would instead limit the Act to prohibit practices that discriminate against pregnant women relative to workers of similar ability or inability only. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The U.S. Supreme Court issued two (2) new opinions on March 24, 2015.

    In B&B Hardware, Inc. v. Hargis Industries, Inc., the Court ruled 7-2 that findings of the Trademark Trial and Appeal Board can be used to preclude subsequent litigation of the same issue before a district court. In this case, B&B attempted to use the Board’s determination that Hargis’ trademark should not be registered because it was likely to cause confusion with B&B’s trademark to preclude Hargis from arguing the confusion issue in a subsequent infringement lawsuit. Justice Alito, writing for the majority, reversed the U.S. Court of Appeals for the Eighth Circuit, and held that when an agency was authorized by Congress to resolve disputes, its decisions can have preclusive effect if the ordinary elements of issue preclusion are met. The majority also noted that since the Board’s decisions could be appealed to a district court for de novo review, there was no reason to treat the Board’s unchallenged decision as being any different from that of a district court. Justice Ginsburg filed a concurrence emphasizing the majority’s observation that issue preclusion would not normally apply in most trademark registration decisions. Justice Thomas, joined by Justice Scalia, dissented, arguing that administrative agency decisions historically were not given preclusive effect, and that the Board itself was not created to exert such an effect, noting also the constitutional concerns raised by providing agencies under the Executive Branch with powers normally reserved to the Judicial Branch. A link to the opinion in B&B Hardware, Inc. v. Hargis Industries, Inc. is here.

    In a partial victory for publically-traded companies, the Court unanimously held that a company’s stated opinion that it was in compliance with federal and state laws was not “an untrue statement of a material fact” in violation of the Securities Act of 1933 merely because that opinion turned out to be incorrect. In Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund, Omnicare was sued by the Fund (which purchased Omnicare’s stock) under the Act for two legal opinion statements beginning with “We believe”. The district court dismissed the Fund’s complaint for failure to state a claim, and the U.S. Court of Appeals for the Sixth Circuit reversed, holding that the Fund needed only to allege that the statements were objectively false to state a claim. Justice Kagan’s opinion for the majority explained that while an opinion statement may violate the Act if it contains an untrue fact, the opinion itself is not a violation even if it winds up being objectively false. However, the Court noted that an opinion may contain an omission of material fact, in violation of the Act, if it fails to provide material facts about the speaker’s inquiry into, or knowledge concerning, the opinion, and those facts conflict with what a reasonable investor would interpret the opinion to imply. Thus the decision of the U.S. Court of Appeals for the Sixth Circuit was reversed on first issue, and remanded for a determination as to whether Omnicare’s opinions improperly omitted facts. Justice Scalia filed a concurrence stating his view that the majority’s opinion allowed for more material facts to be inferred in an opinion than would otherwise be reasonable. Justice Thomas concurred in the judgment only, arguing that the Court should not have opined on what might constitute an omission in violation of the Act because that issue was not before the Court. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.

    James N. Markels


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  • The U.S. Supreme Court issued two new opinions on March 9, 2015.

    The Court ruled that Amtrak is a governmental entity under the Constitution for the purpose of issuing metrics and standards for passenger railroad service, as authorized by Congress, and thus there was no violation of the nondelegation doctrine or the Due Process Clause. Justice Kennedy, joined by six justices, held that despite certain statutory pronouncements, the substantial control and supervision the political branches held over Amtrak precluded it from being considered an autonomous private enterprise, and remanded the matter back to the D.C. Circuit for consideration of other constitutional concerns. Justice Alito filed a lengthy concurrence to highlight the fact that “it does not by any means necessarily follow [from the Court’s holding] that the present structure of Amtrak is consistent with the Constitution[,]” and set forth several such issues. Justice Thomas, concurring in the result only, set forth an originalist framework by which he would have the lower courts analyze the constitutional issues raised by Amtrak on remand—a dissertation that appears to be targeted to revitalize discussion about the separation of powers and the Court’s role in policing that doctrine. A link to the opinion in Dept. of Transportation v. Assn. of American Railroads is here.

    Distinguishing between “legislative rules,” which are issued by agencies using notice-and-comment rulemaking and have the force of law, and “interpretive rules,” which do not, the Court held in Perez v. Mortgage Bankers Association that the Department of Labor did not need to engage in notice-and-comment procedures under the Administrative Procedure Act when it withdrew an opinion letter finding that mortgage-loan officers qualify for the administrative exemption to overtime pay requirements. Justice Sotomayor, joined by five justices in full and Justice Alito in part, overruled the D.C. Circuit’s decision in Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997), which imposed a procedural obligation beyond what the “clear text” of the APA requires for interpretive rules, and rejected the Association’s arguments for adopting the D.C. Circuit’s approach. Justice Alito filed a concurrence suggesting that while the D.C. Circuit’s decision improperly conflicted with the APA, the policy reasons behind the D.C. Circuit’s decision were valid and may need to be re-examined. Justice Scalia, concurring in the judgment, wrote that the Court’s history of deference to the agencies caused the problem the D.C. Circuit sought to correct, that he would overturn Auer v. Robbins, 519 U.S. 452 (1997), and give no deference to agency interpretations as the proper solution. Justice Thomas, also concurring only in the result, called into question the Court’s history of deference to agencies, going back to Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), as undermining the judicial “check” on agencies. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The U.S. Supreme Court issued one new opinion on March 4, 2015.

    In a 2011 case involving the same parties, the Court ruled that a tax illegally “discriminates” under the Railroad Revitalization and Regulation Reform Act of 1976 when it treats similarly situated groups differently without sufficient justification, thereby allowing CSX Transportation, Inc. to continue its lawsuit alleging such discrimination against an Alabama sales and use tax on diesel fuel that only interstate, not intrastate, carriers had to pay. The Court left the issue of what facts and circumstances would constitute discrimination for another day—today, in fact. In Alabama Dept. of Revenue v. CSX Transportation, Inc., Justice Scalia, joined by six other justices, held that discrimination should be read to mean when a victim is singled out relative to others similarly situated, and thus CSX’s competitors were a reasonable comparison class to make such a determination. The Court also held that Alabama could show that those exempt from the tax were forced instead to pay another comparable tax, thus ameliorating any claim of discrimination. Justice Thomas, joined by Justice Ginsburg, dissented, arguing that the tax could not, by its terms, be seen as discriminatory against a rail carrier since it was a generally applicable sales tax. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The State of Colorado, realizing that it was losing money from uncollected sales and use taxes resulting from Internet purchases by residents from nonresident retailers, passed a law requiring the nonresident retailers to provide information of those purchases to the State, subject to penalties. A trade association brought suit in federal court, and the U.S. Court of Appeals for the Tenth Circuit dismissed the case on the basis that the suit sought to “enjoin, suspend or restrain the assessment, levy or collection” of a State tax in violation of the Tax Injunction Act, 28 U.S.C. sec. 1341, which requires such challenges to be brought in state courts. The Court, in a unanimous opinion by Justice Thomas, reversed, holding that “a suit cannot be understood to ‘restrain’ the ‘assessment, levy or collection’ of a state tax if it merely inhibits those activities,” using the equitable definition of “restrain” that is akin to “prohibit.” The Court did not opine whether the suit might be barred under the comity doctrine. Justice Kennedy, concurring, added his view that Internet commerce’s ability to elude state sales and use taxes requires the Court to reconsider its ruling in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), and consider whether nonresident retailers may have a legal obligation to pay such taxes if they have a “substantial nexus” with the state. Justice Ginsburg, joined by Justice Breyer in full and Justice Sotomayor in part, made two observations in concurrence: (1) this case did not consider a suit to enjoin reporting obligations imposed on a taxpayer or tax collector, which may have a different result; and (2) this decision is consistent with the result in Hibbs v. Winn, 542 U.S. 88 (2004). A link to the opinion in Direct Marketing Assn. v. Brohl, released on March 3, 2015, is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The opinion in Shevlin Smith v. McLaughlin provides a veritable cornucopia of rulings—15 assignments of error were considered!—that touch on important areas of legal malpractice and civil litigation that all practitioners should review. The case concerns a legal malpractice case by McLaughlin against his former firm of Shevlin Smith, whom he had hired to file a legal malpractice complaint against his former criminal counsel (two different firms). With McLaughlin’s approval, Shevlin Smith negotiated a settlement against one firm, but not the other. Four months later, the Court issued its opinion in Cox v. Geary, 271 Va. 141 (2006), holding in part that a settlement and release of some co-defendants to a legal malpractice claim released all co-defendants. McLaughlin sued Shevlin Smith for not, among other things, anticipating the Cox ruling, which precluded him from obtaining judgment against the other criminal defense firm, and obtained a $5.75 million verdict. Justice Millette, for a unanimous Court, vacated the judgment and remanded. Among the rulings: (1) a plea in bar can be sustained even if it only partially bars the plaintiff’s recovery; (2) while not adopting the “judgmental immunity rule,” an attorney acting with “a reasonable degree of care, skill, and dispatch” in an unsettled area of law does not engage in legal malpractice, which is an issue of law, not fact, when “reasonable minds could not differ” on the issue; (3) a legal malpractice plaintiff need not prove collectability as an element of his actual injury, although it is a relevant factor that the defending attorney can raise as an affirmative defense, as a “growing number” of states have held; (4) non-pecuniary damages are not recoverable in a legal malpractice claim; and (5) a party cannot request more in his opening statement or closing argument than is set forth in his ad damnum. Justice McClanahan filed a partial dissent, arguing that a legal malpractice plaintiff must prove collectability of any judgment on the underlying lost claim, but otherwise joining in the Court’s rulings. A link to this important opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • On February 25, 2015, the U.S. Supreme Court issued two (2) new opinions.

    The issue in Yates v. United States was quite simple: can a fisherman be prosecuted under 18 U.S.C. sec. 1519 of the Sarbanes-Oxley Act, which forbids the destruction of a “tangible object with the intent to impede” a federal investigation, when he throws undersized fish overboard after a federal agent finds those fish were caught in violation of federal conservation regulations? The answer—no—split the Court 5-4 along surprising lines. Justice Ginsburg, joined by Chief Justice Roberts and Justices Breyer and Sotomayor, held that “tangible object” had to be read in conjunction with the preceding phrase “any record [or] document” to indicate that the “tangible object” had to be one that stored information, like a hard drive, and not fish. The plurality noted a concern that broadly interpreting “tangible object” to including literally any tangible object would grossly expand the scope of the law and expose many to disproportionate penalties. Justice Alito, concurring, opined that the canons of noscitur a sociis and ejusdem generis tipped the scales in this close case in favor of the fisherman. Justice Kagan, joined by Justices Scalia, Thomas, and Kennedy, dissented, arguing that “tangible object” means what it says, which is to include fish or any other physical object. A link to the entertaining opinion is here.

    The Federal Trade Commission accused the North Carolina State Board of Dental Examiners of unreasonably restraining trade in violation of antitrust law when the Board demanded that non-dentists cease offering teeth whitening services. The Board claimed immunity as a state actor, and the Court held in North Carolina State Bd. of Dental Examiners v. FTC that the Board was not entitled to immunity because it was populated by active market participants not subject to active supervision by the State. Justice Kennedy, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan, held that, based on the particular facts in this instance, there was not sufficient evidence of control or oversight by the State for the Board to be cloaked in the State’s sovereign immunity. Justice Alito, joined by Justices Scalia and Thomas, dissented, pointing out that North Carolina designated the Board as a state agency, which should convey immunity, and voicing the concern that the majority’s approach would endanger the function of other state boards composed of current practitioners—a common practice. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • In addressing a dispute between Kansas and Nebraska over water rights to the Republican River Basin, the Court unanimously agreed that Nebraska violated the terms of a Compact between the states addressing those rights, but a bare majority approved of employing the Court’s “equitable apportionment power” to craft remedies. Justice Kagan, joined by four justices, held that Kansas was entitled to $1.8 million from Nebraska in disgorgement damages, and used its equitable power to amend the Compact to correct a “material error” to “align it with the compacting States’ intended apportionment.” Justice Thomas dissented in part, joined by Justices Scalia and Alito, and in which the Chief Justice joined in part, agreeing that Nebraska violated the Compact but arguing that the Court lacked the equitable authority to order disgorgement or amend the Compact—instead, the Court should be limited to the standard tools of contract law. Chief Justice Roberts filed a partial dissent stating that he only disagreed with the amendment remedy. Justice Scalia filed his own partial dissent to note that modern Restatements of law, upon which the majority relied on in part, should have “no weight whatever as to the current state of the law” as the Restatements are now more aspirations rather than descriptive of current law. A link to the February 24, 2015 opinion in Kansas v. Nebraska is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • February 2, 2015-- In Estate of Diane Z. Kirsch v. Lee Graham Shopping Center Limited Partnership, the U.S. Court of Appeals for the Fourth Circuit unanimously held, in a published opinion by Judge Shedd, that the plain terms of a limited partnership agreement prevented an estate from transferring its interest in the partnership to a non-family member. The Court’s opinion includes an interesting discussion of the probate exception to federal court jurisdiction, which is most likely what led to the opinion being published. Specifically, the Fourth Circuit held that the exception is “narrow” in application and only pertains to the following acts: probating a will, annulling a will, administering an estate, or disposing property in custody of a state probate court. A case that “merely impacts a state court’s performance of one of these tasks” is not subject to the exception. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • On January 26, 2015, the U.S. Supreme Court reversed a line of decisions by the U.S. Court of Appeals for the Sixth Circuit and held that ordinary principles of contract law govern welfare benefit plans under the Employee Retirement Income Security Act of 1974, without any presumptions in favor of finding that the benefits have vested. In M&G Polymers USA, LLC v. Tackett, the parties entered into a collective-bargaining agreement for company-provided employee health care benefits that provided a defined termination date. After the agreement terminated, the employer began requiring employees to contribute to their health care benefits, to which the employees objected. Justice Thomas, for a unanimous Court, held that, under standard rules of contract interpretation, a vested lifetime benefit could not be inferred given the unambiguous termination date for the agreement, reversing the Sixth Circuit’s decision in Int’l Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983) and its progeny. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, filed a concurrence imploring the Sixth Circuit, on remand, to “examine the entire agreement to determine whether the parties intended retiree health-care benefits to vest” in case such vesting might be implied from the agreement’s terms. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The U.S. Supreme Court issued three new opinions on January 21, 2015.

    After the Transportation Security Administration issued a regulation prohibiting the disclosure of “specific details of aviation security measures,” air marshal MacLean told a reporter that he believed certain flight cancellations were dangerous and illegal. The TSA fired him, and he argued his disclosure was protected whistleblower activity under 5 U.S.C. sec. 2302(b)(8)(A), which protects TSA employees who disclose violations of any law, rule, or regulation, or a danger to the public, unless “specifically prohibited by law.” Chief Justice Roberts, joined by six justices, held that 2302(b)(8)(A)’s exception, as written, only applied to laws, not regulations, and thus MacLean was eligible for whistleblower protection. Justice Sotomayor, joined by Justice Kennedy, agreed with most of the Court’s opinion, but argued that a separate statute that ordered the TSA to prescribe regulations prohibiting the disclosure of information would bring the TSA’s regulation under the whistleblower exception as a law. A link to the opinion in Department of Homeland Security v. MacLean is here.

    Justice Ginsburg, for a unanimous Court, held that when plaintiffs with a discrete claim have their complaint dismissed without leave to amend, that dismissal is a final appealable order even if the plaintiffs’ claim has been consolidated into a multidistrict litigation action. In Gelboim v. Bank of America, the Court held that cases consolidated for multidistrict litigation retain their separate identities, so dismissal of the plaintiffs’ complaint here effectively removed the plaintiffs from the consolidated proceeding for the purposes of appeal. A link to the opinion is here.

    Finally, the Court held that whether two trademarks may be tacked for the purposes of determining priority is a question of fact for a jury to decide. Tacking is where a trademark owner makes certain modifications to its mark over time while retaining its first-in-time priority over other users. In Hana Financial, Inc. v. Hana Bank, Justice Ginsburg, for a unanimous Court, held that “because the tacking inquiry operates from the perspective of an ordinary purchaser or consumer,” whether a modification qualifies for tacking is a fact question for a jury, and not a question of law for a judge. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The U.S. Supreme Court issued three new opinions on January 20, 2015.

    In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the district court held that a patent claim for a drug was not invalid for indefiniteness because a skilled artisan would know how the main ingredient’s weight was calculated, but the Federal Circuit reversed after reviewing the district court’s ruling de novo as to all aspects, including its determination of subsidiary facts. The Supreme Court, in a 7-member majority opinion by Justice Breyer, reversed the Federal Circuit’s decision, and held that Federal Rule of Civil Procedure 52(a)(6) required the appellate court to use the higher “clear error” standard of review, not de novo. Thus when a district court needs to consult extrinsic evidence in order to understand the background science or the meaning of a term of art in a patent claim, those findings of fact may only be overturned upon a showing of clear error. Justice Thomas, joined by Justice Alito, dissented, arguing that a district court’s construction of a patent claim does not constitute “findings of fact” under Rule 52(a)(6) that would be entitled to clear error review because a patent claim is historically more akin to a statute than a contract or deed. A link to the opinion is here.

    A unanimous Court held in Holt v. Hobbs that a prison regulation forbidding beards was an impermissibly substantial burden on petitioner’s religious exercise as a Muslim under the Religious Land Use and Institutionalized Persons Act of 2000. Justice Alito’s majority opinion noted that even if the grooming policy furthered compelling state interests in prisoner identification and security, there were less restrictive alternative means available to the State, nor could the prison in this instance explain why the vast majority of other States and the Federal Government permitted beards while it could not. Justice Ginsburg, joined by Justice Sotomayor, filed a concurrence to distinguish this case from Burwell v. Hobby Lobby Stores, Inc. Justice Sotomayor filed her own concurrence to make the point that while prison officials were entitled to deference in making security policies for inmates, and need not refute every conceivable counter-option, the Act requires more than unsupported assertions. A link to the opinion is here.

    Finally, in a per curiam opinion, the Court summarily reversed a holding of the U.S. Court of Appeals for the Eighth Circuit, without briefing or argument, and held that an inmate on death row was entitled to consideration under Martel v. Clair, 132 S.Ct. 1276 (2012) whether he was entitled to have new counsel substituted in when his prior appointed counsel missed his deadline to file a habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996. The prior counsel’s conflict of interest in making the inmate’s plea that the deadline was equitably tolled as a result of counsel’s effective malpractice should have been part of the district court’s analysis and application of Martel. Justice Alito, joined by Justice Thomas, dissented, arguing that the case should have proceeded through briefing and argument, and noting his belief that the Court’s decision did not opine on the ultimate question of whether the inmate was entitled to equitable tolling under AEDPA. A link to the decision in Christeson v. Roper is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The U.S. Supreme Court issued two new opinions on January 14, 2015.

    In an important new decision resolving a circuit split under the Telecommunications Act, the Court held that a locality must provide its written reasons for rejecting an application for a wireless service facility “essentially contemporaneously with the written denial letter or notice” to be compliant under the Act. In T-Mobile South, LLC v. City of Roswell, Georgia, a city council issued a denial letter to an applicant for a cell phone tower, but did not make its written reasons supporting that decision, in the form of written minutes of the city council’s meeting, available until 26 days later—four days before the applicant’s deadline to file suit challenging the decision. Justice Sotomayor, joined by five justices, held that while the denial letter itself need not contain the reasons for denial, the city council violated the Act by not releasing those reasons until 26 days after the denial letter was issued. The majority noted that such a delay could cause an applicant to have to guess at what the locality’s reasons were for rejecting the application, and then get “sandbagged” when the locality manufactures those reasons after suit is filed. Chief Justice Roberts, joined by Justice Ginsburg in full and Justice Thomas in part, dissented, arguing that the “contemporaneous” requirement was not found in the text of the Act. Justice Thomas filed a separate dissent arguing that the Court reached beyond the bounds of the dispute to establish its timing requirement. A link to the opinion is here.

    After being sentenced to death for killing a police officer, the petitioner in Jennings v. Stephens filed for habeas corpus review, arguing constitutional violations of his rights by ineffectiveness of his counsel under three theories. The district court upheld his claim as to two of those theories, but not the third, and ordered his conditional release unless Texas granted him a new sentencing hearing or resentenced him to a term of imprisonment. Texas appealed the district court’s grant under the two theories, and the petitioner argued his third theory on appeal without first obtaining a certificate of appealability under 28 U.S.C. sec. 2253(c). The U.S. Court of Appeals for the Fifth Circuit held that petitioner’s argument on his third theory was not properly appealed, and thus not before that court. The U.S. Supreme Court, in an opinion by Justice Scalia, joined by five justices, reversed, holding that the petitioner was not obligated to cross-appeal the district court’s denial of relief under his third theory because that line of argument did not expand his rights under the district court’s conditional order of release. Justice Thomas, joined by Justices Kennedy and Alito, in a dissent that repeatedly cited from prior opinions by Justice Scalia, argued that a cross-appeal on the third theory was necessary because it sought to expand his rights under the district court’s judgment by adding an additional ground for Texas to have to address as part of the conditional release order. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • The U.S. Supreme Court issued two new opinions on January 13, 2015.

    Resolving the apparent conflict between two provisions of the Truth in Lending Act, the Court unanimously held in Jesinoski v. Countrywide Home Loans, Inc. that a borrower’s right to rescind a loan is timely so long as the borrower notifies the creditor within three years of when the transaction is consummated of his or her intention to rescind, per 15 U.S.C. sec. 1635(a). Justice Scalia’s opinion, reversing the decision of the U.S. Court of Appeals for the Eighth Circuit, explained that Section 1635(f), which provides that the “right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever comes first,” did not require the borrower to file suit within the three-year time period in order to rescind a loan—a simple written notice under 1635(a) was all that was necessary. Thus, the borrowers’ lawsuit in this case, filed four years after the transaction, but only one year after a timely 1635(a) notice, could proceed. A link to the opinion is here.

    Justice Scalia, again for a unanimous Court, held that a bank robber “forces any person to accompany him without the consent of such person” pursuant to 18 U.S.C. sec. 2113(e) even if that bank robber only forces the other person to move a very short distance. In the tragic case of Whitfield v. United States, Whitfield, fleeing a botched bank robbery, entered the home of a 79 year-old woman, and guided her from the hallway to a computer room between four and nine feet away, where she suffered a fatal heart attack. Whitfield was found guilty of violating 2113(e), and he appealed, arguing that there had to be “substantial” movement to support the conviction. Noting that the accompaniment clause had not changed since the days of John Dillinger in 1934, the Court held that movement from “one place to another, even if only from one spot within a room or outdoors to a different one,” qualified under 2113(e), although “minimal movement—for example, the movement of a bank teller’s feet when the robber grabs her arm” would not qualify. A link to the opinion is here.

    For more information, please contact James N. Markels at 202-457-1610 or by email at jmarkels@jackscamp.com.



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  • Nancy Ortmeyer Kuhn, Chair of our Tax Law Business Group, was quoted in a ProPublica article, "New IRS Rules On Dark Money Likely Won't Be Ready Before 2016 Election". The article was also picked up by Politico and the Huffington Post.



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