12 April 2014

Law in Plain English: United States v. Auernheimer

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Case: United States v. Andrew Auernheimer

Argument: Mar 13, 2014 (Aud.)

Background: Andrew Auernheimer ("Weev") was convicted of violating the Computer Fraud and Abuse Act (CFAA) by collecting the email addresses of iPad customers through an "account slurper" program.

Issues: (1) Did Auernheimer and Spitler access a computer “without authorization” under 18 U.S.C. § 1030(a)(2)(C)?

(2) If Auernheimer was properly convicted of a conspiracy to violate the CFAA, was that conspiracy a misdemeanor or a felony?

(3) Did Auernheimer violate the identity theft statute, 18 U.S.C. § 1028(a)(7)?

(4) Was venue proper in the District of New Jersey?

(5) Do AT&T’s costs in mailing a letter to its customers support an eight-level upward adjustment under the United States Sentencing Guidelines? 

Holding: The Third Circuit ruled that trying Auernheimer in New Jersey, where no elements of the crime occurred, denied Auernheimer’s substantial right to be tried in the place where his alleged crime was committed. As a result, it reversed the decision of the District Court and vacated his conviction. Weev was released on Friday night to the custody of his lawyer, Tor Ekeland.

It is important to note that the Third Circuit did not rule on the CFAA in this case. Venue is a threshold issue; by deciding the venue was improper, the District Court never had jurisdiction to hear the case. Venue is a procedural matter that doesn't go to the substance of the underlying charges. That is why it is possible that Weev could likely be charged again without violating double jeopardy, see i.e., Haney v. Burgess, 799 F.2d 661 (11th Cir. 1986) (retrial of a defendant whose conviction was reversed because of improper venue does not violate double jeopardy).


Date Proceedings and Orders
Jan 13 2011 Criminal Complaint
Jun 22 2011 Plea Agreement with Daniel Spitler
Aug 16 2012 Superseding Indictment
Sep 21 2012 Memorandum of Law in Support of Defendant's Motion's to Dismiss
Oct 5 2012 Brief in Opposition to Defendant's Motion to Dismiss
Nov 20 2012 Trial Verdict
Dec 3 2012 Memorandum of Law in Support of Defendant's Motion for a Judgment of Acquittal Under Federal Rule of Criminal Procedure 29
Mar 17 2013 Defendant's Sentencing Memorandum
Mar 19 2013 Judgment
Jul 1 2013 Appellant's Opening Brief
Jul 8 2013 Amicus Brief of Mozilla Foundation, Computer Scientists, and Security and Privacy Experts
Jul 8 2013 Amicus Brief of Security Researchers
Jul 8 2013 Amicus Brief of Digital Media Law Project
Jul 8 2013 Amicus Brief of National Association of Criminal Defense Lawyers
Aug 5 2013 United States’ Motion for a Word Limit Extension to 26,500 Words and A Stay of the Briefing Schedule
Aug 5 2013 Opposition to United States' Motion for A Word Limit Extension to 26,500 Words and Stay of Briefing Schedule
Aug 6 2013 Reply To Appellant’s Opposition To United States’ Motion For A Word Limit Extension And Stay of Briefing Schedule
Sep 20 2013 Brief of Appellee (United States)

02 April 2014

Law in Plain English: McCutcheon v. Federal Election Commission

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogMcCutcheon v. Federal Election Commission

Argument: Oct 8 2013 (Aud.)

Background: Congress enacted the Federal Elections Campaign Act of 1971 (FECA) to "promote fair practices in the conduct of election campaigns for Federal political offices." In 1974, Congress amended FECA to prohibit persons from contributing more than $1,000 to any political candidate, individuals from contributing more than an aggregate of $25,000 in any calendar year, and political committees from contributing more than $5,000 to any political candidate. In 2002, Congress passed  the Bipartisan Campaign Reform Act of 2002 (BCRA, popularly known as the McCain-Feingold Act) which replaced the $25,000 aggregate limit with a bifurcated limiting scheme of base limits (not being challenged here) and aggregate limits. During each two-year period starting in an odd-numbered year, no individual may contribute more than an aggregate of $46,200 to candidates and their authorized committees or more than $70,800 to anyone else. Of that $70,800, no more than $46,200 may be contributions to political committees that are not national political party committees. These aggregate limits, which amount to a total biennial limit of $117,000, thus prevent individuals from contributing the statutory maximum to more than eighteen candidates. McCutcheon wanted to contribute more; his additional candidate contributions would amount to aggregate candidate contributions of $54,400. A three-judge panel of the United States District Court for the District of Columbia denied McCutcheon's claim.

Issue: The question before the Court is whether the biennial, aggregate limit on contributions to non-candidate committees is unconstitutional as a violation of the First Amendment.

Holding: In a 5-4 decision, the Supreme Court ruled that the aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance. As a result, the aggregate limits violate the First Amendment and are not constitutional. Justice Thomas did not join the majority opinion, but concurred in the judgment only. Nonetheless, he agreed that the aggregate limits are invalid under the First Amendment, but would go further than the majority and overrule Buckley v. Valeo, 424 U. S. 1, and subject BCRA’s aggregate limits to strict scrutiny, where (he says) they would surely fail.

Law in Plain English: Northwest, Inc. v. Ginsberg

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Rabbi S. Binyomin Ginsberg.
Image from ajc.com.
SCOTUSblogNorthwest, Inc. v. Ginsberg

Argument: Dec 3 2013 (Aud.)

Discussion: Ginsburg brought suit against Northwest Airlines alleging a breach of contract under the implied covenant of good faith and fair dealing when Northwest revoked his WorldPerks membership. The Airline Deregulation Act (ADA), 49 U.S.C. § 41713(b)(1) 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 that may provide air transportation..." Based upon this provision, the District Court held that Plaintiffs claim was preempted by the ADA and dismissed the claim. The Ninth Circuit reversed, finding that in the ADA's language or history suggested that Congress intended displace State common law contract claims that do not affect deregulation in more than a "peripheral...manner."

Issue: The question before the Court is whether the court of appeals erred in holding, in contrast with the decisions of other circuits, that respondent’s implied covenant of good faith and fair dealing was not preempted under the Airline Deregulation Act because such claims are categorically unrelated to a price, route, or service, notwithstanding that respondent’s claim arises out of a frequent-flyer program (the precise context of American Airlines, Inc. v. Wolens) and manifestly enlarged the terms of the parties’ undertakings, which allowed termination in Northwest’s sole discretion.

Holding: In a unanimous opinion, the Supreme Court ruled that the ADA preempts a state-law claim for breach of the implied covenant of good faith and fair dealing if it seeks to enlarge the contractual obligations that the parties voluntarily adopt.

30 March 2014

Law in Plain English: Public Employees’ Retirement System of Mississippi v. IndyMac MBS, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogPublic Employees’ Retirement System of Mississippi v. IndyMac MBS, Inc.

Argument: TBD (Aud.)

Background: TBD

Issue: The question before the Court is whether the filing of a putative class action serves, under American Pipe & Construction Co. v. Utah, to satisfy the three year time limitation in § 13 of the Securities Act with respect to the claims of putative class members.

Holding: TBD

Law in Plain English: Jennings v. Stephens

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogJennings v. Stephens

Argument: TBD (Aud.)

Background: TBD

Issue: The question before the Court is whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

Holding: TBD

26 March 2014

Law in Plain English: United States v. Castleman

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogUnited States v. Castleman

Argument: Jan 15 2014 (Aud.)

Background: In 2001, James Castleman pleaded guilty to one count of misdemeanor domestic assault in violation of Tennessee Code § 39-13-111(b) for "intentionally or knowingly cause bodily injury to [the mother of his child]." Several years later, federal agents discovered that Castleman and his wife were buying firearms from dealers and selling them on the black market. Under the Castlemans' scheme, Castleman's wife purchased firearms, allegedly lied on federal firearms paperwork by stating that she was the actual buyer of the firearms, and turned the firearms over to her husband, who was legally prohibited from purchasing firearms because of his domestic assault conviction. One of the firearms Castleman's wife allegedly purchased was recovered in a homicide investigation in Chicago, Illinois. An investigation by the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) led agents to the Castlemans. A grand jury indicted Castleman on two counts of possession of a firearm after being "convicted...of a misdemeanor crime of domestic violence," in violation of 18 U.S.C. § 922(g)(9). The District Court dismissed the § 922(g)(9) counts in Castleman's indictment, reasoning that Castleman's misdemeanor domestic assault conviction did not qualify as a domestic violence crime because the statute required "force in the sense of violent contact" instead of merely "force as a scientific concept relating to the movement of matter." The Sixth Circuit affirmed.

Issue: The question before the Court is whether the respondent’s Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9).

Holding: In a 9-0 decision, the Supreme Court ruled that Castleman's conviction qualifies as a "misdemeanor crime of domestic violence." Section 922(g)(9)’s “physical force” requirement is satisfied by the degree of force that supports a common-law battery conviction—namely, offensive touching.

25 March 2014

No Ma’am: Progressive Reform as an Obstacle to Gender Equality

With a subtle reference to Al Bundy. Here is the introduction to my Supreme Court Seminar paper.

Rapid industrialization in post-Civil War America brought with it swift economic growth and a substantial increase in both the labor force and labor wages.  Women moved out of the farmer’s field and into the factory.  Between 1870 and 1900, the number of women in the labor force grew from 1.9 million to 5.3 million.  The percentage of working women increased from 13.3% to 18.8%. 

At the same time, the period was marked by labor strife and the rise of the labor union.  This gave rise to the Progressive Era, a two-decade long period of social and political reform characterized by extensive government intervention in society and the economy. To the extent that classical liberalism and laissez faire economics were representative of late 19th century America, the Progressive Era sought to reign in the perceived excesses of capitalism. The period belonged to the likes of Richard T. Ely, Roscoe Pound, and Louis Brandeis.  To guard against the perceived exploitation of workers, progressives championed protective labor legislation. The most common reforms were minimum wage and maximum hours laws, especially so when they focused on women.

In the four decades between 1897 and 1937, conservatives (holding the mantel of classical liberalism) would repeatedly skirmish with progressives, especially in the labor arena. The chief weapons were liberty of contract on the conservative side and the state’s police power on the progressive side. To this end, Supreme Court decisions in Allgeyer v. Louisiana and Lochner v. New York ushered in decades of economic substantive due process that became a major thorn in the side of the progressive agenda. A distinct subset of these liberty of contract cases focused on women’s protective labor legislation.

Since the 1970s, a growing body of scholarship has taken a critical look at these Progressive Era cases with an eye toward evaluating the long-term legacy of women’s protective labor legislation. In an empirical sense, most of the work has focused on the period from the Reconstruction amendments until West Coast Hotel v. Parrish and the end of the Lochner era.  Other work has focused on the period from the New Deal forward. Little scholarly attention has been paid to the important links between these two periods.

This paper seeks to add a critical piece to the conversation. By balancing the sober discourse of modern scholarship with historical accounts, news reports, and legal scholarship contemporary to the events as they occurred, I intend to take a closer look at the intersection of two lines of cases. First, Muller v. Oregon and its progeny of cases that serve as precedents for treating women differently than men; and second, a series of cases beginning in the 1930s that abdicated meaningful judicial review in favor of expanded police powers jurisprudence. Beginning in Muller, efforts by the Court to acquiesce to the progressive political agenda did so by perpetuating gender stereotypes and prolonging a period of indifference toward the rights of women. This was the result of a deliberate strategy by progressives to downplay inequality and individual rights in favor of the state’s police power. Both state and federal courts were considerably more deferential to protective labor legislation when it focused on women as opposed to protective labor legislation in general. While my research is focused on the Supreme Court's protective labor jurisprudence as it relates to gender, I will occasionally highlight state cases, especially because much of the labor legislation being challenged originated in state courts. 

This paper will demonstrate that the courts’ already-deferential attitude toward women’s protective labor legislation was reinforced and enhanced by abandonment of meaningful rational basis review. Together, these two lines of cases provided a potent combination that established long-standing and difficult precedents to overcome, and ultimately doomed the prospects of equality for women until the 1970s. Progressive reform became an obstacle to gender equality.

Given a fair chance, the natural evolution of the liberty of contract doctrine might well have led to some fuller measure of gender equality, especially in the labor arena, considerably sooner than actually occurred. Untethered from anachronistic precedents that “perpetuat[ed] the treatment of women as less than full persons within the meaning of the Constitution,”  the struggle for gender equality might have achieved its first significant victory long before 1971.  To be sure, women who supported formal equality constituted a minority among feminists. Nonetheless, they agitated against women’s protective labor legislation as early as the time of Muller and brought cases on their own behalf. Ordinary women like May Cashel, Ethel Nelson, Elmira Simpson and Willie Lyons saw through the paternalistic veil and recognized these laws as restrictive rather than protective. The likelihood of their success may have been low, but the intellectual underpinnings of their argument were alive and well. Ultimately, though, the structural subordination of women doomed their chances.

Part I discusses the important historical context of the Fourteenth Amendment, concerning both its original understanding and the scope by which it was applied in the years immediately after its ratification. Of special interest during this period is the role of American feminists, particularly in terms of divisions within the feminist movement over how to both define and achieve equality.

Part II covers the historical development of liberty of contract. This section explains the history and doctrinal development of liberty of contract through the lens of 19th century scholars and judges. In this section, I’ll review how the progressive movement sought to refocus and carry out their strategy to push back against the perceived excesses of laissez faire capitalism. In particular, Part II focuses on Muller v. Oregon and its progeny as the foundation of progressive reforms, as well as “sociological jurisprudence” and the Brandeis Brief.

Part III demonstrates how a line of cases beginning in 1931 firmly established a modern incarnation of the presumption of constitutionality. By abandoning the traditional 19th century police powers jurisprudence, the Court confirmed that gender discrimination would be subject only to rational basis review. Then, the Supreme Court became so deferential to economic legislation that even reasonable rational basis review became eviscerated.

Finally, I will share the results of my extensive analysis of women’s protective labor cases in the years after West Coast Hotel. In Part IV, I will show how the legacy of Muller, together with the Court’s post-Lochner jurisprudence, created a structural barrier to gender equality. Progressives advocated a calculated strategy to advance their agenda. They did so at the expense of women, who became unwitting victims in a larger political game.

Law in Plain English: Lexmark International, Inc. v. Static Control Components, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogLexmark International, Inc. v. Static Control Components, Inc.

Argument: Dec 3 2013 (Aud.)

BackgroundLexmark, a producer of laser printers and toner cartridges for its laser printers, developed microchips for both the toner cartridges and the printers so that Lexmark printers will reject any toner cartridges not containing a matching microchip. Static Control Components identified how to replicate the cartridge microchips. Lexmark then sued Static Control for copyright violations related to its source code in making the duplicate microchips. Static Control made a counterclaim under federal and state antitrust and false-advertising laws (including the Lanham Act). Lexmark successfully moved to dismiss all of Static Control's counterclaims. The Sixth Circuit affirmed the district court's dismissal of Static Control's federal antitrust claims, but reversed the dismissal of Static Control's claims under the Lanham Act and certain claims under state law.

Issue: The question before the Court is to determine the appropriate analytic framework for determining a party’s standing to maintain an action for false advertising under the Lanham Act. The three competing possibilities are: (1) the factors set forth in Associated General Contractors of California, Inc. v. California State Council of Carpenters as adopted by the Third, Fifth, Eighth, and Eleventh Circuits; (2) the categorical test, permitting suits only by an actual competitor, employed by the Seventh, Ninth, and Tenth Circuits; or (3) a version of the more expansive “reasonable interest” test, either as applied by the Sixth Circuit in this case or as applied by the Second Circuit in prior cases.

Holding: In a unanimous decision, the Supreme Court ruled that Static Control has adequately pleaded the elements of a Lanham Act cause of action for false advertising. The Court dismissed the three possibilities above and adopted a fourth test: the cause of action extends to plaintiffs who 1) fall with in the zone of interests protected by that statute and 2) whose injury was proximately caused by a violation of that statute. To come within the zone of interests in a suit for false advertising, a plaintiff must allege an injury to a commercial interest in reputation or sales. A plaintiff must show economic or reputational injury flowing directly from the deception wrought by the defendant’s advertising; and that that occurs when deception of consumers causes them to withhold trade from the plaintiff.

Law in Plain English: United States v. Quality Stores, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogUnited States v. Quality Stores, Inc.

Argument: Jan 14 2014 (Aud.)

Why did the Supreme Court take this case? In this case, the Sixth Circuit held that payments Quality Stores made to its employees upon terminating their employment involuntarily due to business cessation constituted supplemental unemployment compensation benefits that are not taxable as wages under FICA. On the other hand, the Federal Circuit ruled in an earlier case that such payments are subject to taxation. So-called "circuit splits" are perhaps the most common way cases make it to the Supreme Court.

Background: Quality Stores was the largest agricultural-specialty retailer in the country serving farmers, hobby gardeners, skilled trade persons, and do-it-yourself customers. Following an involuntary Chapter 11 bankruptcy petition, Quality Stores closed sixty-three stores and nine distribution centers and terminated the employment of approximately seventy-five employees in the corporate office. Quality Stores made severance payments to those employees whose employment was involuntarily terminated. Because the severance payments constituted gross income to the employees for federal income tax purposes, Quality Stores reported the payments as wages on W-2 forms and withheld federal income tax. Although Quality Stores collected and paid the FICA tax, it did not agree with the Internal Revenue Service (IRS) that the severance payments constituted wages for FICA purposes. Quality Stores filed with the IRS seeking the refund of $1,000,125 in FICA tax. When the IRS did not allow or deny the refund claims, Quality Stores filed an adversary action in the bankruptcy court. The bankruptcy court ordered a full refund, holding that payments Quality Stores made to its employees upon terminating their employment involuntarily due to business cessation constituted supplemental unemployment compensation benefits that are not taxable as wages under FICA. The District Court and the Sixth Circuit both affirmed.

Issue: The question before the Court is whether severance payments made to employees whose employment was involuntarily terminated are taxable under the Federal Insurance Contributions Act.

Holding: In a unanimous decision (with Justice Kagan not participating), the Supreme Court ruled that the severance payments at issue are taxable wages for FICA purposes.

10 March 2014

Law in Plain English: Marvin M. Brandt Revocable Trust v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogMarvin M. Brandt Revocable Trust v. United States

Argument: Jan 14 2014 (Aud.)

"Though we recognize that the Seventh Circuit, the Federal Circuit and the Court of Federal Claims have concluded that the United States did not retain any reversionary interest in these railroad rights-of way, we are bound by our precedent."
United States v. Brandt, 496 F. App'x 822, 825 (10th Cir. 2012) cert. granted, 12-1173

Background: In 1976, the government conveyed 83.32 acres of land to Melvin M. Brandt and Lula M. Brandt — the parents of Marvin M. Brandt. The land patent conveyed the property in fee simple and stated that it was subject to a right-of-way granted to the Laramie, Hahn's Peak, and Pacific Railroad Company for railroad purposes in 1908. In 1987, the Wyoming and Colorado Railroad Company, Inc. ("WYCO") acquired the railroad right-of-way and operated the rail line for a number of years. In May 1996, WYCO filed a Notice of Intent to Abandon Rail Service with the Surface Transportation Board ("STB"). The STB approved abandonment of the rail line in December 2003, and, in January 2004, WYCO notified the STB that it had completed its abandonment of the railroad right-of-way. The United States sought to quiet title on the theory that it had an implied reversionary interest in the right-of-way. The District Court found in favor of the United States, who sought to use the right-of-way for a rails-to-trails conversion. The Tenth Circuit affirmed. The Court of Federal Claims dismissed a parallel claim by Brandt for lack of jurisdiction, but the Federal Circuit reversed.

Issue: The question before the Court was whether the United States retained an implied reversionary interest in rights-of-way created by the General Railroad Right of Way Act of 1875 after the underlying lands were patented into private ownership.

Holding: In an 8-1 decision, the Supreme Court ruled that the right of way was an easement that was terminated by the railroad’s abandonment, leaving Brandt’s land unburdened. As a result, the Government did not retain an implied reversionary interest in the right-of-way.

05 March 2014

Law in Plain English: Lozano v. Alvarez

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogLozano v. Alvarez

Argument: Dec 11 2013 (Aud.)

Discussion: Diana Lucia Montoya Alvarez ("Alvarez") and Manuel Jose Lozano ("Lozano"), both originally from Colombia, met and began dating in London in early 2004. Alvarez claimed Lozano was abusive. Despite this, they had a child together. In 2008, shortly after visiting her sister Maria in New York, Alvarez left the couple's apartment to bring the child to nursery school and never returned. For the next seven months, Alvarez and the child resided at a women's shelter. In early July of 2009, Alvarez and the child left the United Kingdom, eventually traveling to New York, where they have lived since that time. In New York, Alvarez and the child lived with Alvarez's sister Maria, along with Maria's partner, daughter, and granddaughter. She eventually overstayed her visa. On November 10, 2010, Lozano filed a Petition for Return of Child  pursuant to Article 2 of the Hague Convention and the International Child Abduction Remedies Act, 42 U.S.C. § 11603 (2005) (ICARA), in the United States District Court for the Southern District of New York, requesting an order requiring that the child be returned to London to have a British court make a custody determination. The District Court concluded that Lozano had made out a prima facie case of wrongful retention under [the Hague Convention because: (1) the child was a habitual resident of the United Kingdom; (2) Alvarez's unlawful removal of the child breached Lozano's custody rights under English law; and (3) Lozano exercised parental rights at the time the child was removed. However, the court found that ICARA's one year statute of limitations had expired. Lozano argued that the statute of limitations should have been subject to equitable tolling until the time Lozano reasonably could have learned of his child's whereabouts, but the court disagreed. The Second Circuit affirmed.

Issue: The questions before the Court are (1) Whether a district court considering a petition under the Hague Convention on the Civil Aspects of International Child Abduction for the return of an abducted child may equitably toll the running of the one-year filing period when the abducting parent has concealed the whereabouts of the child from the left-behind parent; and (2) whether an abducted child can be “settled” in the United States, within the meaning of Article 12 of the Convention, where it is undisputed that both the abducting parent and the child are residing illegally in the United States, and the abducting parent presents no evidence of a legitimate pending application or basis under existing law for seeking a change in their immigration status.

Holding: In a 9-0 decision, the Supreme Court ruled that under the Hague Convention, the one-year period for filing a petition for the child's removal is not subject to equitable tolling.

Law in Plain English: BG Group PLC v. Republic of Argentina

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogBG Group PLC v. Republic of Argentina

Argument: Dec 2 2013 (Aud.)

Background: A bilateral investment treaty between the United Kingdom of Great Britain and Northern Ireland, and Argentina provides that disputes between an investor and the host State will be resolved in the host State's courts. If no final court ruling is forthcoming within eighteen months or the dispute is unresolved after a court ruling, the treaty provides that the dispute may be sent to arbitration. BG Group, PLC, a British corporation and investor in Argentina gas companies, invoked the arbitration clause without first filing a claim in the Argentine courts. The arbitration panel nonetheless ruled it had jurisdiction, found Argentina had violated the treaty, and awarded BG Group damages. The DC Circuit reversed, finding that the question of arbitrability is an independent question of law for the court to decide; and as a result, that BG Group was required to  file its lawsuit in Argentina's courts and wait eighteen months before filing for arbitration.

Issue: The question before the Court is whether, in disputes involving a multi-staged dispute resolution process, a court or the arbitrator determines whether a precondition to arbitration has been satisīŦed.

Holding: In a 7-2 decision, the Supreme Court ruled that a court of the United States, in reviewing an arbitration award made under the Treaty, should interpret and apply “threshold” provisions concerning arbitration using the framework developed for interpreting similar provisions in ordinary contracts. Under that framework, the local litigation requirement is a matter for arbitrators primarily to interpret and apply. Courts should review their interpretation with deference.

Law in Plain English: Rosemond v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogRosemond v. United States

Argument: Nov 12 2013 (Aud.)

Did you know? Rosemond is represented by John Elwood, a blogger at the Volokh Conspiracy and writer of the Relist Watch at SCOTUSblog.

Discussion: Rosemond was involved in a drug transaction-gone-wrong. He was punched in the face by another man who then fled. Someone then pulled out a nine-millimeter handgun and fired nine or ten shots at the fleeing man. At trial, the District Court instructed jurors on both of the Government's theories, that Rosemond was the shooter and, alternatively, that he aided and abetted another's use of a firearm during the drug deal. Based on a written statement and testimony at trial that Rosemond was the shooter, jurors found Rosemond guilty of using and discharging a firearm during a federal drug-trafficking offense (among other charges). However, they were not required to specify under which theory they convicted. The Tenth Circuit affirmed, but acknowledged that most other circuits require jurors to find, additionally, that the defendant took some action to facilitate or encourage his cohort's use of the firearm.

Issue: The question before the Court is whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.

Holding: In a 7-2 decision, the Supreme Court held that the Government establishes that a defendant aided and abetted a §924(c) violation by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission. As a result, the Court ruled that the trial judge's jury instructions were erroneous, and remanded the case to determine whether there was harmless error.

Law in Plain English: Lawson v. FMR LLC

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogLawson v. FMR LLC

Argument: Nov 12 2013 (Aud.)

Background: Sarbanes-Oxley (SOX) has a whistleblower protection provision for employees of public companies. Lawson and Zang were employees of FMR LLC (and their subsidiaries), private companies working as an advisor or subcontractor to Fidelity, a public company organized under the Investment Company Act of 1940 and subject to reporting requirements of the Securities and Exchange Commission. Both alleged concerns about internal practices (Lawson resigned, alleging constructive discharge; and Zang was fired). The private companies filed a motion to dismiss, arguing that they were not covered under the whistleblower provision because they were not public companies. However, the District Court agreed with Lawson and Zang and found that SOX whistleblower protection provision extended to employees of private agents, contractors, and subcontractors to public companies. The First Circuit reversed, finding that the District Court's definition was too broad.

Issue: The question before the Court is whether an employee of a privately held contractor or subcontractor of a public company is protected from retaliation by the SOX whistleblower protection provision.

Holding: In a 6-3 decision, the Supreme Court ruled that SOX's whistleblower protection provision includes employees of a public company’s private contractors and subcontractors.

Law in Plain English: Law v. Siegel

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogLaw v. Siegel

Argument: Jan 13 2014 (Aud.)

Did you know? The plaintiff, Stephen Law, filed a pro se (by himself), in forma pauperis petition to the Supreme Court. Based on recent statistics, such a petition has less than two tenths of one percent chance of being accepted.

Background: Law filed for Chapter 7 bankruptcy. He indicated two liens on his house and a homestead exemption of $75,000. While the homestead exemption would ordinarily be protected in bankruptcy, Siegel (the bankruptcy trustee) sought to compensate the estate for the monetary costs imposed by Law's misconduct by imposing a surcharge on the homestead exemption (effectively eliminating it). The Bankruptcy Court allowed Siegel's surcharge motion, and both the Bankruptcy Appellate Panel and the Ninth Circuit affirmed.

Issue: The question before the Court is whether the Ninth Circuit erred in allowing the bankruptcy trustee to surcharge the debtor’s constitutionally protected homestead property.

Holding: In a unanimous decision, the Supreme Court ruled that the Bankruptcy Court exceeded the limits of its authority when it ordered that the $75,000 protected by Law’s homestead exemption be made available to pay Siegel’s attorney’s fees. As a result, Law's homestead exemption was protected even despite his egregious misconduct.