U.S. Supreme Court October - PowerPoint Presentation

U.S. Supreme CourtOctober Term 2016 Preview Faegre Baker Daniels LLPJeff JustmanAaron Van Oort Liz Wright Greene Espel PLLPJohn BakerKarl Procaccini October 19, 2016

OverviewHigh-profile cases in:Criminal law and procedureIntellectual propertyConstitutional lawCivil procedure and jurisdiction Federal statutory claims

Criminal Law

Criminal law casesPena-Rodriguez v. Colorado Whether a no-impeachment rule may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury

Criminal law casesBuck v. Davis Did the Fifth Circuit err in denying a Certificate of Appealability on the basis of ineffective assistance where the petitioner’s attorney presented an expert witness who testified the petitioner was more like to be dangerous in the future because of his raceEmpirical evidence presented by petitioner:COA denial rate in the 4th Circuit: 6.3% COA denial rate in the 5th Circuit: 58.9%COA denial rate in the 11th Circuit: 0%

Criminal law casesMoore v. TexasStandards for the definition of intellectual disability under Atkins v. Virginia, which held that persons with intellectual disability may not be sentenced to death under the ConstitutionThe “Lennie Standard”Shaw v. United States Whether the federal bank fraud statute’s “scheme to defraud a financial institution” requires proof not only to deceive but also to cheat a bank

Salman v. United StatesQuestion PresentedIn a case concerning tippee liability for insider trading, to prove the required “personal benefit” to the insider, is it necessary to show a monetary or tangible benefit to the insider, or is it sufficient that the tipper and the tippee are close family members?Key FactsInsider shared material facts with brother, who in turn shared information with the defendant (the insider’s brother-in-law) Over four years, and as a result of trades based on insider information, the defendant grew $396,000 to $2.1 millionNo evidence that the insider enjoyed monetary or other tangible benefits as result of the tips provided

Salman v. United StatesMay resolve issues raised by the Second Circuit in NewmanDirks v. SEC (1983) established the “personal benefit” for insider trading liabilityIn U.S. v. Newman, the Second Circuit held, in the case of a tip to a friend, there must be proof of “an exchange that is objective, consequential , and represents at least a potential gain of a pecuniary or similarly valuable nature” The Ninth Circuit concluded that the personal benefit requirement is satisfied where the tipper and tippee are close family members; no proof of potential or actual pecuniary gain is requiredAt oral argument Justice Breyer: Helping a family member “is like helping yourself”Potential implications beyond insider tradingForeign Corrupt Practices Act: “anything of value”

Intellectual Property

Intellectual property casesSamsung Electronics v. AppleDesign patent damagesLife Technologies Corp v. Promega Corp. Scope of extraterritorial patent infringementHygiene Products v. First Quality Baby ProductsCan laches bar a patent claim brought within the statute of limitations?Star Athletica LLC v. Varsity Brands, Inc.Copyright protection for useful articles Lee v. DamRegistration of disparaging trademarks

Samsung Electronics v. Apple“Where a design patent is applied to only a component of a product, should an award of infringer’s profits be limited to those profits attributable to the component? ” D618,677: Black rectangular front face with rounded cornersD593,087: rectangular front face with rounded corners, but with the addition of a “bezel,” or surrounding rimD604,305: particular grid of sixteen colorful icons on a black screen

Samsung Electronics v. AppleDistrict court awarded infringer’s profits in the amount of Samsung’s entire profits on sales of its accused phones$399 million

Samsung Electronics v. Apple “Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties.” 35 U.S.C. § 289. “Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U.S.C. § 171.

Samsung Electronics v. AppleSolicitor General’s Four Factor TestCompare the scope of the patented design as shown in the drawings in the patent;Examine how prominently that design features in the accused article;Consider whether there are other conceptually distinct innovations or components in the article that are not part of or associated with the patented design; andCompare the physical relationship between the patented design and the rest of the article.

Life Technologies Corp v. Promega Corp. “Whether the Federal Circuit erred in holding that supplying a single, commodity component of a multi-component invention from the United States is an infringing act under 35 U.S.C. § 271(f)(1), exposing the manufacturer to liability for all worldwide sales.” “Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” 35 U.S.C. § 271(f)(1).

Hygiene Products v. First Quality Baby Products“Whether and to what extent the defense of laches may bar a claim for patent infringement brought within the Patent Act’s six-year statutory limitations period, 35 U.S.C. § 286.” “Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action.” 35 U.S.C. § 286.“Laches, we hold, cannot be invoked to preclude adjudication of a [copyright] claim for damages brought within the three-year window.” Petrella v. MGM, Inc., 134 S. Ct. 1962, 1965 (2014).

Hygiene Products v. First Quality Baby Products“Whether and to what extent the defense of laches may bar a claim for patent infringement brought within the Patent Act’s six-year statutory limitations period, 35 U.S.C. § 286.” “Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action.” 35 U.S.C. § 286.“Laches, we hold, cannot be invoked to preclude adjudication of a [copyright] claim for damages brought within the three-year window.” Petrella v. MGM, Inc., 134 S. Ct. 1962, 1965 (2014).“We have not had occasion to review the Federal Circuit’s position.” Petrella, 134 S. Ct. at 1974 n.15.

Star Athletica LLC v. Varsity Brands, Inc.“What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act? ” “[T]he design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101.

Lee v. Dam“Whether the disparagement provision in 15 U.S.C. 1052(a) is facially invalid under the Free Speech Clause of the First Amendment.” “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it . . . [c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. § 1502(a).

Constitutional Law

Other Constitutional Law: Pending CasesMurr v. Wisconsin Selection of the relevant “parcel” in a takings claim, where plaintiff also owns one or more adjacent parcelTrinity Lutheran Church v. Pauley Whether exclusion of churches from a neutral secular aid program violates Free Exercise, Equal Protection ClausesBethune Hill v. Va. Bd. Of Elections Use of race in redistrictingLynch v. Morales-Santana Whether immigration statute’s physical-presence requirement for unwed citizen mothers of foreign-born children violates Equal Protection Clause

Other Constitutional Law: Pending Cases (cont’d)McCrory v. Harris When district court’s failure to recognize racial gerrymandering is clearly erroneous and thus reversibleManuel v. City of JolietWhether the Fourth Amendment includes right against malicious prosecution, and if so, using which standardLynch v. DimayaFor purposes of federal immigration law, is the current definition of “crime of violence” unconstitutionally vague in light of Johnson v United StatesHernández v. Mesa Whether Fourth Amendment applies to a cross-border shooting, and if so, whether a damages remedy is available against the guard

Other Constitutional Law: Pending Cases (cont’d)Ziglar, Ashcroft, Hasty and others v. TurkmanWhether a civil remedy is available against federal officials sued for post-9/11 counterterrorism under Bivens, or Section 1985(3), and if so, whether the officials are entitled to qualified immunity, and whether the Iqbal pleading standard was applied too lightly

Expressions Hair Design Expressions Hair Design v. Schneiderman Question presented: Whether this New York statute forbidding retailers from attaching surcharges for credit card use regulates speech and not conduct for purposes of the First Amendment: “No seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.”Range: Eleven states (including four especially populous ones – California, New York, Texas and Florida) have similar statutes None in the Eighth Circuit, howeverConflicts: Federal challenges in New York, Texas, and Florida since 2013 have created a circuit splitA fourth challenge – in California – was successful, and is on appeal.

Expressions Hair Design Why the retailers believe these kinds of statutes are subject to First Amendment scrutinyIn theory, a retailer could want to pass through a bank’s “swipe fees” (usually 2-3%) in varying ways:Imposing a surcharge on credit-card users (so that a coat with a regular price of $100 costs a credit-card user $103 plus tax) , or Offering a discount from the regular price to customers who use cash (so that the same coat, with the same regular price, costs a cash customer something less than $100 plus tax).The law forbids Option 1 (also disliked by customers), not Option 2Plaintiff wants to set two different regular prices, based on payment method, but fears it’ll constitute Option 1Plaintiff: forbidding Option 1 (but not 2) really just regulates words and labels for the same economic reality

Expressions Hair Design The Second Circuit (September 2015) : This regulates conduct (pricing schemes) and not just speech.“the fact that these pricing schemes have different labels (and thus that sellers are likely to refer to them using different words) obviously does not mean that all they are is labels.”In March 2016 the Fifth Circuit agreed (regarding the Texas statute)2-1 majority of the Eleventh Circuit (December 2015):“The [Florida] no-surcharge law is content based: it applies only to how a merchant may frame the price difference between cash and credit-card payments.” It “is speaker based: it applies only to those merchants who accept payment by both cash and credit card and engage in dual-pricing.”“And the no-surcharge law is viewpoint based: it denies the expression of one equally accurate account of reality in favor of the State’s own.”

Jurisdiction and Procedure

Jurisdiction and procedure casesMicrosoft Corp v. BakerWhether a court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claimsVenezuela v. Helmerich & Payne DrillingWhether the pleading standard for a FSIA claim is more demanding than the standard for ordinary federal question claimsLightfoot v. Cendant Mortgage Co. Whether Fannie Mae’s charter confers original jurisdiction in the federal courts of every case brought by or against Fannie MaeMcLane Co. v. EEOCWhether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do

Microsoft v. BakerQuestion presented“Whether a federal court of appeals has jurisdiction under both Article III and 28 U. S. C. §1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice” Key factsDistrict court twice denied class certification of claims against Microsoft about XBOX 360Plaintiffs then dismissed their case voluntarily so they could appeal order striking class allegations

Cases involving federal statutory claimsBank of America v. MiamiWhat plaintiffs bringing racial-discrimination-in-housing claims under the Fair Housing Act must plead in terms of causation and injury Visa v. Osborn and Visa v. StoumbosWhether alleging that credit card companies and banks agreed on fees to be charged to use ATM machines sufficed to plead a Sherman Act claimCzyewski v. Jevic Holding Corp.Whether a bankruptcy court may authorize the distribution of settlement proceeds in a manner that violates the bankruptcy code’s priority schemeState Farm v. U.S. ex rel. GrigsbyWhat standard governs the decision whether to dismiss a relator's claim for violation of the False Claims Act's seal requirementEndrew F. v. Douglas County School DistrictWhat level of educational benefit school districts must confer on children with disabilities under the Individuals with Disabilities Education Act

Bank of America v. MiamiBasic issue: Whether city governments are among those whom Congress has given permission to sue to enforce the equality guarantees of the Fair Housing ActKey facts: Miami sued Bank of America and other residential mortgage lenders. Its “ambitious” theory alleged that: The bank targeted black and Latino customers in Miami for predatory loans that carried more risk, steeper fees, and higher costsBy steering minorities toward these predatory loans, Bank of America caused minority-owned properties throughout Miami to fall into foreclosureThe City was then deprived of tax revenue and had to spend more on municipal services (such as police, firefighters, trash and debris removal, etc.) to combat the resulting blight

Bank of America v. MiamiIssues:Constitutional standingInjury in fact? Statutory standingAggrieved person? CausationProximate cause?