The Supreme Court’s NOT Top 10: Cases the Justices Wrongly Rejected Last Term

supreme courtThe usual spate of articles by Supreme Court scribes pronouncing the Roberts Court staunchly pro-business were noticeably sparser as the latest term ended. When journalists are reduced to using the Obamacare and same-sex marriage cases as their main exhibits to prove the Supreme Court’s supposed pro-business tilt, you know it wasn’t a banner year for business.

Of course there were a few notable losses (King v. Burwell itself, Oneok, and Texas Dept. of Housing come to mind). But the fact that free enterprise did not fare well this term had comparatively little to do with the decisions the Supreme Court issued. Rather, business civil liberties suffered more overall from the various state supreme court and federal courts of appeals cases that the high court left on the cutting-room floor.

The tally that follows comprises more than just the cases of a disappointed cert seeker. WLF did not participate in more than half of the examples discussed below. However, the cert petitions mentioned here are all cases where free enterprise, individual and business civil liberties, or rule of law interests were at stake. From the free-market vantage point, it once again appears that the Court did not make enough room on its docket for cases implicating significant liberty interests. By choosing a lighter load, the Court allows legal uncertainty to linger, lower-court disobedience to fester, adventuresome new legal theories to propagate, and injustices implicating millions, if not billions, of dollars to prevail.       Continue reading

Applying High Court Jurisdiction Rulings, Federal Judge Shuts Out Suit Against Foreign Soccer Federation

headerGuest Commentary

By Ashley Snell, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

After finding some success in its concussion-related class actions against professional and amateur football associations, noted plaintiffs’ firm Hagens Berman has taken aim at the world’s most popular sport—soccer. The firm has sued a number of soccer organizations, including the much-maligned Federation Internationale de Football Association (FIFA), for failing to provide proper concussion management for players. The Zurich, Switzerland-based federation, obviously averse to playing defense on (or rather, in) the plaintiffs’ home court (U.S. District Court for the Northern District of California), moved to dismiss. The result in Mehr v. Federation Internationale de Football Association exhibits the far-reaching impact of the U.S. Supreme Court’s game-changing general-jurisdiction decisions.

In its 2014 Daimler AG v. Bauman decision, the Court offered defendants highly specific guidance on defeating general jurisdiction. Several past WLF Legal Pulse commentaries have addressed Bauman (here and here). In a nutshell, Argentinian plaintiffs sued a German company, over events that took place in Argentina, in a California federal court. The Court’s opinion limited general jurisdiction over corporations to its principal place of business, its state of incorporation, and “an exceptional case” that renders the defendant at home in that state. Continue reading

King v. Burwell’s Implications for Employer-Sponsored Health Plans

Guest Commentary

Kim Wilcoxon, Thompson Hine LLP

Three years ago, the Supreme Court of the United States announced its decision in NFIB v. Sebelius and upheld the individual mandate under the Patient Protection and Affordable Care Act (ACA). Last week, the Supreme Court announced its decision in King v. Burwell and upheld the Internal Revenue Service’s (IRS) interpretation that tax credits were available under the ACA for taxpayers in all states, whether or not a state’s exchange was established by the state government or the federal.

There are many similarities in how these decisions affect employer-sponsored health plans. It’s déjà vu all over again, so this post revisits questions addressed in this blog three years ago in light of King v. Burwell. Continue reading

Supreme Court Observations: Kimble v. Marvel Entertainment, LLC

Kaminski_Jeffri_LRFeatured Expert Contributor – Intellectual Property (Patents)

Jeffri A. Kaminski, Venable LLP

The U.S. Supreme Court recently decided a closely watched case concerning contract rights and patent royalties. In Kimble v. Marvel Entertainment, LLC the Court upheld its long standing precedent and determined that parties cannot agree to patent royalty payments that extend beyond the expiration of the patent.

The case originated when Kimble and Marvel agreed to a patent license for a toy glove that Kimble had patented. The licensing agreement called for a lump sum payment and running royalties for a license to the patent as part of a settlement of ongoing litigation. The agreement did not set an end date for the royalty payments. In making its decision the Court upheld its ruling in Brulotte v. Thys Co., 379 U.S. 29 (1964), holding that licenses requiring payment of patent royalties after patent expiration are “unlawful per se.” Brulotte has been the subject of criticism in the 50 years since it was decided, but the Court determined that was not enough of a reason to overturn its longstanding precedent. Continue reading

Law Professor’s Attack on WLF’s “Legislative Grace Canon” Argument in “King v. Burwell” Brief Sails Wide of the Mark

Not a "canon"

Not a “canon”

University of Iowa College of Law Professor Andy Grewal blogged earlier this year about WLF’s amicus curiae brief in King v. Burwell at the Yale Journal on Regulation’s Notice & Comment Blog. While we’ll refrain from comment on his rather pedantic advice as to what material is best included in a brief, we did want to set the record straight about the crux of WLF’s argument, especially given the decision’s imminent release before the Supreme Court term ends later this month.

In a nutshell, WLF’s brief asks the U.S. Supreme Court to reverse an appeals court ruling that, if upheld, would allow IRS to appropriate billions of dollars a year in tax credits without authorization from Congress. IRS argued that it was entitled to Chevron deference for the agency’s interpretation of § 1321 of the Affordable Care Act (ACA), which authorizes subsidies for an exchange “established by the State.” Continue reading

Supreme Court Holds that Belief Patent Is Invalid Is No Defense to Induced Infringement

Kaminski_Jeffri_LRFeatured Expert Contributor – Intellectual Property (Patents)

Jeffri A. Kaminski, Venable LLP

The Supreme Court declined to create a new defense this week for defendants in patent infringement cases, holding that a defendant’s belief regarding patent validity is not a defense to a claim of induced infringement under 35 U.S.C. § 271(b), as a matter of first impression in Commil USA, LLC v. Cisco Systems, Inc. This is welcome news to some patent owners who have felt the legal tide has been turning against them. However, the Court also recognized that so-called “patent trolls” exist and that frivolous patent infringement lawsuits are being brought in federal courts. The Court stressed that district courts have authority under Rule 11 and 35 U.S.C § 285 to levy sanctions and award fees to dissuade frivolous cases from being filed. With its ruling, the Court continued its trend of trying to maintain a balance between patent owners and accused infringers.

The Court began its analysis by clarifying the current state of the law. Direct infringement is a strict liability offense. The state of mind of the infringer is not relevant in determining liability for direct infringement. In contrast to direct infringement, liability for inducing infringement attaches only if the defendant knew of the patent and that “the induced acts constitute patent in­fringement.” Global-Tech Appliances, Inc. v. SEB S.A. It is not enough if the party charged with induced infringement did not know that the acts it induced would infringe. Continue reading

Raisin Farmers’ Video Explains What’s at Stake in Pending “Horne v. USDA” SCOTUS Case

This video explains why Laura and Marvin Horne have taken their case that a U.S. Department of Agriculture marketing program violates the Fifth Amendment of the Constitution all the way to the Supreme Court.

Washington Legal Foundation filed an amicus brief in Horne v. USDA supporting the farmers’ argument that the program’s seizure of raisin crops without compensation is an unconstitutional taking. The Court heard oral arguments in the case on April 22. On the afternoon of the argument, WLF held a Web Seminar program assessing the arguments, which featured one of the Hornes’ attorneys, Stephen Schwartz.  A video of the program can be viewed here.