Commercial Litigation Update

Continuing the issuance of opinions as to which the Justices are largely of one mind, the Court today handed down three decisions. Each gives important guidance to litigators on both sides of the ball. The first of these is a unanimous opinion settling the hotly debated question of whether intent under the federal False Claims Act (FCA) is a subjective or objective matter. It is the former. The second decision, also unanimous, clarified what a plaintiff must plead and prove to establish securities fraud regarding a stock offering through a direct listing. The third case offers a lone dissent over a majority and concurring opinions rejecting a labor union’s argument that the National Labor Relations Act (NLRA) preempts a state court tort action concerning workers sabotaging a company’s concrete trucks.

With essential unanimity, though with an array of concurrences in one of them, the Supreme Court ruled against government parties in three cases, two of them in favor of homeowners, and in property rights and environmental enforcement cases, and a third, upholding the right of appeal by a prison guard charged with causing a detainee's beating.

In a per curiam opinion issued in Calcutt v. Federal Deposit Insurance Corporation, the Court has reversed the U.S. Court of Appeals for the Sixth Circuit and remanded to it an enforcement action that had been brought against a bank executive charged with mismanaging a loan relationship. After agency proceedings were completed and sanctions ordered, the Sixth Circuit held that the FDIC had made two fundamental legal errors in adjudicating the case against the bank CEO who had appealed. However, instead of remanding the case to the FDIC, the Sixth Circuit conducted its own review and concluded that the FDIC had, on the evidence presented, made a supportable decision to ban and fine the executive.

The Supreme Court issued no fewer than six opinions on Thursday, May 18, addressing questions including whether an internet platform might be held liable as an aider and abettor of terrorist activity, and whether Andy Warhol’s famous alterations of photos of the artist known as Prince violated the copyright of an almost-as-famous photographer.

With the Justices largely in agreement across the board, the Court today issued five opinions. One of them provides a usefully definitive view of the limited nature of the so-called “dormant Commerce Clause.” Two of them are criminal law cases in which all the Justices were united in reversing the Second Circuit and taking a textually literal, constricting view favorable to defendants as to what constitutes wire fraud and related theft of honest services. Another decision favors a non-citizen fighting removal from the United States, and yet another upholds the sovereign immunity of U.S. territorial governments and their agencies.

Litigants and attorneys often assume—wrongly—that arbitration proceedings are completely confidential. In fact, there are many ways that private arbitration proceedings can become subject to public scrutiny.

On Wednesday, April 19, the Court decided three cases that are interesting and instructive in following how the Justices, both nominal liberals and conservatives, attempt to apply textual methodology in assessing jurisdictional prerequisites, though not always reaching unanimous results.

Once again, with a substantial backlog of cases—some of them potentially controversial—argued and pending decision, the Court continues to sail in relatively calm waters.

As a business owner, you have invested time, money, and effort into creating a brand that represents your company and sets it apart from competitors. Protecting your investment through registering and enforcing your trademark plays an essential role in ensuring your efforts were not in vain. Without proper protection, your trademark, and by extension, your brand, may be vulnerable to infringement or dilution by competitors, resulting in loss of customers, revenue, and reputation. This is the first in a series of articles discussing how business owners can protect and enhance the goodwill developed in their brand.

While the substantial backlog of decisions has many observers waiting for a flood of rulings, the Supreme Court is moving at its own pace. Thus, the Court has issued a single opinion today, but especially for readers who are involved in administrative law challenges to administrative agency determinations, it is an important one. And it might become even more significant to the extent that it augurs future limitations on agency autonomy.