The Supreme Court’s “Microsoft Corp. v. Baker” Decision Restores Much Needed Sanity to Federal Appellate Procedure

supreme courtMicrosoft Corp. v. Baker is one of those cases that only a lawyer could love. At issue was whether a federal appellate court has jurisdiction to review a class-certification order if the plaintiffs have voluntarily dismissed all of their claims, with prejudice.

Class-action plaintiffs have long sought the right to immediately appeal from orders denying class certification. In the 1960s and 1970s, some federal courts of appeals began allowing such an immediate right of appeal under the so-called death-knell doctrine. Under that judicially created rule, if the plaintiffs could show that the denial of class certification—if left unreviewed—would end the lawsuit for all practical purposes, the appeals court would grant review of that interlocutory order. Continue reading

“Kokesh v. SEC”: Its Wide-Ranging (and Mostly Good) Implications for Disgorgement Actions

MorrisGuest Commentary

By Andrew J. Morris, a Partner with Morvillo LLP. Mr. Morris authored a March 10, 2017 WLF Legal BackgrounderIs the Clock Running out on SEC’s Unchecked Pursuit of Disgorgement Penalties?

In Kokesh v. Securities and Exchange Commission, the US Supreme Court ruled that SEC actions for disgorgement are governed by the five-year statute of limitations for penalties. This decision is a real blow to the SEC: It ends the practice of using disgorgement actions to obtain massive sanctions for conduct that took place many years in the past, outside the limitations period for penalties and forfeitures. The decision also invites defendants to make further challenges to SEC enforcement actions by litigating several related issues.

Implications for Enforcement Proceedings

The Court’s opinion, written by Justice Sotomayor, is summarized in a WLF Legal Pulse post authored last week by UCLA School of Law Professor Stephen Bainbridge. The gist of the decision is that disgorgement is a form of penalty because it involves a defendant who has violated a public law and must pay money to the United States Treasury; this contrasts with non-penalty cases, where the defendant has injured a particular victim and must pay compensation to that victim. And because disgorgement is a penalty, the Supreme Court held, disgorgement actions are covered by 28 U.S.C. § 2462, the five-year statute of limitations for penalties. Continue reading

WLF Garners Fifth Consecutive US Supreme Court Victory with “Baker v. Microsoft”

supreme courtOn June 12 in Microsoft v. Baker, the US Supreme Court unanimously rejected a class-action litigation tactic that created an unfair advantage for plaintiffs in such suits. Both Justice Ginsburg in her majority opinion and Justice Thomas in his concurrence in judgment embraced arguments made in Washington Legal Foundation’s victorious amicus brief. WLF had also filed an amicus brief in support of Microsoft before an en banc panel of the US Court of Appeals for the Ninth Circuit, and further filed in support of the company’s cert petition to the Supreme Court after its loss in the appeals court.

The Baker decision is the fifth consecutive Supreme Court victory for WLF. The other four cases are:

The Court has not yet released opinions in four additional cases in which WLF filed amicus briefs (CalPERS v. ANZ Securities, Inc.; Jennings v. Rodriguez; Ziglar v. Abbasi; and Bristol-Myers Squibb Co. v. Superior Court), and we are also awaiting a decision on the cert petition WLF filed on behalf of its client, Chance Gordon, in Gordon v. Consumer Financial Protection Bureau.

On Tuesday, June 27, 1:00-2:00 pm EST, WLF will be holding its 28th annual US Supreme Court end-of-the-Term briefing, which will focus on the cases noted above as well as other decisions that affect the free-enterprise system and economic liberties. Details appear below:

The U.S. Supreme Court: October 2016 Term Review
>RSVP to attend in person or live online to glammi@wlf.org
>Speakers:

 

 

See Spot Sue?: Eleventh Circuit’s Bar on Dog Defendants Exemplifies Problems with Allowing Animal Plaintiffs

By Jordan FowlerDraco, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

You can sue your grocer, you can sue your policeman, you can even sue your neighbor John, but can you sue neighbor John’s dog? In May, the US Court of Appeals for the Eleventh Circuit firmly answered that question: no.  In Jones v. Fransen it held that a plaintiff could not sue a police dog for excessive force due to constraints in statutory language and practical problems. This holding is notable beyond its unusual facts: it demonstrates that although many plaintiffs’ attorneys creatively seek new clients, the impracticalities of suing a dog demonstrate why an attorney also cannot represent a dog—or any other animal—as a plaintiff in an animal rights lawsuit.   Continue reading

Tuned in to the First Amendment: Court Upholds Satellite Radio’s Right to Choose Advertisers

sirius XMBusiness entities have endured increasingly strident criticism of their free speech rights in recent years. Thankfully, the US Supreme Court and most lower federal courts have declined to embrace critics’ ideologically-driven perspective that the First Amendment does not protect corporate speech. Such judicial respect for a business’s speech rights was recently on display in an unusual setting: a contract dispute between Sirius XM Radio and an advertiser. The court decision arising from that dispute, InfoStream Group v. Sirius XM Radio Inc., both demonstrates how the First Amendment can provide an effective defense and underscores the principle that not all speech by commercial enterprises is “commercial speech.” Continue reading

Supreme Court Observations: Kokesh v. Securities & Exchange Commission

Featured Expert Contributor – Corporate Governance/Securities Law

bainbridgeStephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law.

The Securities and Exchange Commission (SEC) can seek a wide range of sanctions against those who violate the federal securities laws, including various monetary penalties. Most of these causes of action are subject to the 5 year statutes of limitations under 28 U.S.C. § 2462. Section 2462 applies to any “action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture.” In Gabelli v. SEC, 568 U. S. 442 (2013), the US Supreme Court held that suits in which SEC seeks monetary civil penalties are subject to § 2462. Until recently, however, SEC claimed—and some lower courts agreed—that actions for disgorgement were not subject to § 2462 or, for that matter, any other statute of limitations.

In a unanimous June 5, 2017, opinion by Justice Sotomayor, however, the Supreme Court held that disgorgement imposed in SEC actions constitutes a penalty and, accordingly, that such suits are subject to the § 2462 limitations period. Kokesh v. SEC, 581 U.S. ___ (2017). [Editor’s Note: Washington Legal Foundation filed an amicus brief in the Court in support of the Petitioner]. Continue reading

No “Genericide” for Google: Ninth Circuit Upholds Company’s Trademark Against Cybersquatter’s Challenge

trademarkBy Jillian Beatty, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Suppose you just bought a house. In the first few years as a home-owner, you revamp the backyard, remodel the master bathroom, and decorate in that mid-century modern style you had always loved. You have done a little maintenance on the pipes and replaced the garbage disposal in the kitchen, all costing you a pretty penny. But that’s ok. This is an investment. Then, just as your home is reaching its pinnacle, as the calls from Better Homes and Gardens and Architectural Digest start pouring in, a man knocks on the door and asks for the keys and the deed. You have done too good of a job maintaining this home and now you are going to lose it. You will receive no compensation. Continue reading