Commercial Litigation Update

The Court has decided the case of Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., holding that lack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration. Reversing the Ninth Circuit, the Court held that the appeals court was wrong to overturn a copyright infringement verdict that a fabric designer won against fast-fashion chain H&M when it ruled that inadvertent legal errors cannot be the basis for challenging a copyright registration.

The pension trustees of Northwestern University, and those elsewhere, will need to take close note of the Court’s unanimous decision (Barrett, J., not participating) in Hughes v. Northwestern University in which the Court returns yet again to interpreting the Employee Retirement Income Security Act (ERISA), this time in the context of determining the extent of ERISA fiduciaries’ duty to monitor investments and remove imprudent ones. See Tibble v. Edison International, 575 U.S. 523 (2015).

Late in the afternoon of January 19th, the Supreme Court dealt a crippling blow to the argument of the defeated former President, when by an 8-1 majority (Thomas, J., dissenting), the Court denied Mr. Trump's application for a stay of the mandate and injunction pending the review of the decision of the D.C. Circuit in the case of Trump v. Thompson, ordering the transmission by the Archivist of the documents sought by the House Select January 6th Committee.

The Court didn’t waste time getting to a controversial matter, the applications for stays of the Occupational Safety and Health Administration’s (“OSHA’s”) COVID-19 mandate concerning alternatives of mandatory testing, masking, or vaccination directed at employers and the Department of Health & Human Services (“DHHS”) mandate directed at health care facilities and their workers.

The Court has resumed issuing opinions with its holding in Babcock v. Kijakazi, Acting Commissioner of Social Security. This case of statutory interpretation is of particular interest to the relatively small set of individuals who claim retirement benefits based on simultaneous service in two federal pension systems. The Court's opinion, written by Justice Barrett, was joined by all of the other Justices, save for Justice Gorsuch, who, somewhat self-consciously, dissented.

Readers of SCOTUS Today, especially employers, might appreciate seeing an article that I co-wrote concerning the Supreme Court's rejection of a petition to enjoin New York State's vaccine mandate applicable to health care workers: “Supreme Court Lets New York’s Vaccine Mandate for Health Care Workers Stand.”

This action is consequential on its face because while future litigation by health care workers and others is certain, no fewer than six Justices have indicated support for a major mandate that allows for very limited exemptions. This marks the second time that the Court has rejected such a petition.

No case in recent months has created more news than the Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization, as to which the Supreme Court recently heard oral argument.

Commentators on all sides of the inherently controversial issue of abortion have, often with great self-importance, opined how, at least in their views, each of the Justices will decide the case and how that decision will affect the Court’s two major opinions in the area: Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. We likely will have to wait months to know the outcome of Dobbs, in which the state argues that the trimester-based regime of Roe must be overruled.

While this post is not going to be of profound interest to most practitioners, it serves at least two purposes. First, it marks the new flow of formal opinions of the Court for the current term, and second, it is a reminder that there is a small category of cases that proceed to the Court in its original jurisdiction—one that includes suits between states.

Article III, section 2, of the Constitution provides that “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "Reflecting on Bostock."

The following is an excerpt:

From the number of rainbow flags that I’ve been seeing, it is clear that this is a month of celebration of increasing societal inclusion, notwithstanding the divisions that are challenging the rule of law in America. Indeed, today marks the first anniversary of the Supreme Court’s decision in Bostock v. Clayton County in which, surprising to some, Justice Gorsuch wrote for the majority that an ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "Unanimity on Criminal Cases as We Wait for More Divisive Matters."

The following is an excerpt:

Not surprisingly, as the Court's term moves nearer to its end, we still are awaiting decisions in several controversial areas that are likely to produce divided results. Meanwhile, unanimity prevails, though the cases in which it is reflected are unlikely to foreshadow the results in other matters, except to the extent that I think all of them will devolve from ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Justices Show Again That They Are Not Politicians in Robes."

The following is an excerpt:

A short note about the Supreme Court’s decision today in Borden v. United States, in which it considered whether a felon-in-possession gun charge qualified as a “violent felony” under the Armed Career Criminal Act (“Act”), 18 U. S. C. §924, which provides enhanced penalties for criminals convicted of certain firearms offenses who have at least ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Court Takes a Literal Approach to Statutory Interpretation Again - This Time, to Immigration Laws."

The following is an excerpt:

This term’s potential blockbusters still are unresolved, but this morning’s unanimous decision in Sanchez v. Mayorkus is worthy of at least a passing note. In an opinion written by Justice Kagan, the Court held that an individual who entered the United States unlawfully and was later granted Temporary Protective ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Supreme Court Limits the Effective Reach of the Computer Fraud and Abuse Act."

The following is an excerpt:

Those of us who deal regularly with cybersecurity matters have been waiting eagerly for the Supreme Court’s decision in Van Buren v. United States, which raised the question of whether the language of the Computer Fraud and Abuse Act of 1986 (CFAA), 18 U. S. C. §1030(a)(2), which subjects to criminal liability anyone who “intentionally ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "A Placid Beginning to the Last Month of the Term."

The following is an excerpt:

This morning begins what many are anticipating to be an exciting last month of the 2020 term. Among other things, we expect to find out about the continued viability of the Affordable Care Act, and several First Amendment matters, including the extent to which religious expression trumps antidiscrimination laws, and the ability of a school to sanction off-campus speech. These ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "A Unanimous Court Rules That District Courts Can't Modify Appellate Cost Awards."

The following is an excerpt:

The case of City of San Antonio v. Hotels.com L.P. has ended with a long opinion, reaching a simple and direct conclusion. A unanimous Supreme Court, in an opinion written by Justice Alito, has held that Fed. R. App. P. 39 does not permit a district court to modify or eliminate an allocation of costs awarded by a court of appeals to a successful ...

Our colleague Stuart Gerson authored an article in Bloomberg Law, titled “No-Poaching Agreements, Wage Fixing & Antitrust Prosecution.”

The following is an excerpt (see below to download the full version in PDF format):

Especially in difficult economic times, companies look for stability and predictability. Hence, while intent upon avoiding litigation charging wage fixing or its close cousin, no-poach agreements, experience suggests that there are companies that might be considering various ways to exchange information related to employment that can be used for ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "A Unanimous Court Applies Unambiguous Statutory Requirements in Two New Decisions".

The following is an excerpt:

The Court is in full-majority mode today, again focusing on text rather than more abstract notions of policy.

In Territory of Guam v. United States, a unanimous Court, in an opinion written by Justice Thomas, reversed the D.C. Circuit and revived Guam’s suit against the U.S. Navy, seeking $160 million because of pollution at a waste ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "Court Grants Certiorari in Abortion Case, Issues Several Decisions, and Continues to Demonstrate an Essential Commitment to Textualism".

The following is an excerpt:

The most widely reported action that the Supreme Court took this past Monday is its grant of cert. to review an en banc decision of the Fifth Circuit that, if reversed, would substantially undercut Roe v. Wade. That case won’t be argued until next fall and, for now, the readers of ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Court at Peace".

The following is an excerpt:

Given that there was a good deal of media interest in Justice Sotomayor’s somewhat vituperative dissenting criticism of Justice Kavanaugh in last week’s decision in the criminal sentencing case of Jones v. Mississippi¸ today’s per curiam GVR (Grant, Vacate, and Remand) order in Alaska v. Wright is worthy of at least passing mention.

Once again, the Ninth Circuit is reversed, this time ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Court Dismisses the Trump Twitter Account Case as Moot, but Social Media Is Sure to Be on the Menu Again".

The following is an excerpt:

Yesterday, I discussed the Supreme Court's move into the world of technology in the case of Google LLC v. Oracle America, Inc., in which the Court held that Google's copying of a small slice of Java programming language code constituted a permissible “fair use” of Oracle's assumed copyright of Java itself. The ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Court Won't Allow Second-Guessing of Convictions Supported by Persuasive Evidence".

The following is an excerpt:

In a per curiam opinion (Sotomayor, J., dissenting without opinion), the Court today decided the case of Mays v. Hines, reversing the Sixth Circuit and reinstating a judgment of conviction in a murder case that originated almost 35 years ago.

Hines had been convicted of murder in the wake of evidence that he had been seen fleeing the ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Supreme Court Takes a Lenient View of Personal Jurisdiction and 4th Amendment Seizures".

The following is an excerpt:

The Court rendered two opinions on Thursday, both interesting and impactful, one of them particularly significant with respect to civil litigation practice.

Ford Motor Co. v. Montana Eighth Judicial District Court arose following two motor vehicle accidents, one in Montana, the other in Minnesota, in which Ford vehicles were ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Understanding Standing Under Article III – and the Chief Justice Stands Alone.

The following is an excerpt:

Articles in the popular press have noted that today's decision by a near-unanimous Supreme Court in the case of Uzuegbunam v. Preczewski represents a victory for several Christian students in their battle against a college's restrictive policies that prevented their on-campus religious evangelizing.

It is true enough that the now-former ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: The Supreme Court Decides Significant Administrative Law Case Preventing Disclosure of Agency Deliberations

The following is an excerpt:

The Court decided two cases today, one of which is an administrative law case that may prove consequential, not just in the field of environmental law, in which it is grounded, but in other areas of the law, for example, health care, in which prospective rules undergo repeated drafts and modifications. United States ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: A Hint About the Future of the Affordable Care Act.

The following is an excerpt:

There were no opinions delivered today, only very heated and important argument in the consolidated cases of Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee.

These cases concern whether two of Arizona’s voting policies—one prohibiting counting provisional ballots cast on election day outside of a ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Court’s Unanimous Opinion in Federal Tort Claims Act Case Provides Useful Guidance on Claim/Issue Preclusion.

The following is an excerpt:

The Court rendered a unanimous opinion (per Thomas, J., with Sotomayor, J., concurring) in the case of Brownback v. King. The Respondent, King, suffered personal injury in a confrontation with Brownback and Allen, two members of a federal task force, and brought suit against them and others under the Federal ...

Our colleagues Stuart Gerson and Daniel Fundakowski of Epstein Becker Green have a new post on SCOTUS Today that will be of interest to our readers: "Court Declines Resolving Circuit Split on What Constitutes a 'False' Claim, but Will Consider Legality of Trump Abortion Gag Rule."

The following is an excerpt:

While this blog usually is confined to the analysis of the published opinions of the Supreme Court, several of this morning’s orders are worthy of discussion because of their importance to health care lawyers and policy experts. Guest editor Dan Fundakowski joins me in ...

Advances in artificial intelligence (“AI”) continue to present exciting opportunities to transform decision-making and targeted marketing within the world of consumer products. While AI has been touted for its capabilities in creating fairer, more inclusive systems, including with respect to lending and creditworthiness, AI models can also embed human and societal biases in a way that can result in unintended, and potentially unlawful, downstream effects.

Mostly when we talk about bias, we focus on accidental bias. What about intentional bias? The following ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Biden DOJ No Longer Argues That the ACA Is Unconstitutional

The following is an excerpt:

While the Supreme Court is in recess this week, and public attention is drawn to the trial of Donald Trump in the Senate, there is one event at the Court that is worthy of attention, particularly by those who counsel clients in the health care space. In a letter to the Court, the Biden Department of Justice (“DOJ”) has reversed the position that the previous administration had ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Court Favors Judicial Review in Railroad Benefits Case, Remands Two Cases Concerning Nazi-Era Looted Property.

The following is an excerpt:

The Supreme Court decided three cases Wednesday, two of them related. None of them could be characterized as a blockbuster ruling or even a matter of broad national interest. One of them, however, will garner much inside-baseball commentary because the 5-4 majority that decided it included the Chief Justice and Justice ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Court Refuses to Take Another Look at Case Questioning Whether Judge or Arbitrator Should Decide Scope of Arbitration Agreement

The following is an excerpt:

The overall quiet at the Court on Monday was only lightly interrupted with its per curiam decision in Henry Schein, Inc. v. Archer & White Sales, Inc., dismissing the petition for certiorari to the Fifth Circuit as improvidently granted. I mention it because the dismissal leaves open the questions that ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Unanimous Court Applies “Plain Meaning” Approach in Bankruptcy Decision

The following is an excerpt:

Bankruptcy is not usually a subject that I would cover in this blog, but I write about the Supreme Court’s unanimous decision today in City of Chicago v. Fulton for two reasons. The first is obvious in that, in these uncertain times, there is an unfortunate number of companies that are contemplating reorganization and others that, as a result, are taking ...