‘Empirical SCOTUS’ Analysis Finds WLF Is Most Successful Certiorari-Stage Advocate in Supreme Court’s Current Term

stephensGuest Commentary

Jay B. Stephens, Of Counsel, Kirkland & Ellis LLP and Chairman, WLF Legal Policy Advisory Board

The US Supreme Court is one of America’s most selective governmental entities. Over the past century, Congress removed most direct-appeal rights to the Court, leaving the vast majority of litigants in a position of having to seek the votes of four justices through the discretionary certiorari process. With the Court currently accepting only between 70 and 80 cases per term, the odds of a grant of certiorari  for cases where an attorney submits the petition are now between 4% and 6%.

One factor that most appellate advocates believe increases the odds of the Court granting certiorari is the filing of high-quality, influential amicus curiae (“friend of the court”) briefs urging the justices to vote for review. Over the past 40 years, Washington Legal Foundation has established itself as an extremely effective cert-stage advocate in cases that affect the free-enterprise system and economic liberties. A recently published analysis of lawyers’ and organizations’ success at the Supreme Court’s cert stage—both as Counsel of Record for a review-seeking party and as amicus—demonstrates that effectiveness. Continue reading “‘Empirical SCOTUS’ Analysis Finds WLF Is Most Successful Certiorari-Stage Advocate in Supreme Court’s Current Term”

With Ninth Circuit Exacerbating Judicial Discord on “Ascertainability,” Time For SCOTUS to Resolve Split

sellingerdvannostrandaGuest Commentary

By David E. Sellinger and Aaron Van Nostrand, Greenberg Traurig LLP

In a closely watched appeal, the US Court of Appeals for the Ninth Circuit has squarely weighed in on the “ascertainability” of class members in a class-action lawsuit. The three-judge panel further widened a rift among federal courts of appeal on the issue, holding that plaintiffs need not demonstrate an administratively feasible way to identify class members at the class-certification stage.

In an August, 2016 WLF Legal Backgrounder, we predicted that a trio of class actions then-pending in the Ninth Circuit could prompt the US Supreme Court to resolve the circuit split on the ascertainability issue. Although that issue was briefed in all three cases, it was not decided in Brazil v. Dole Packaged Foods, LLC (No. 14-17480), and a hold placed on Jones v. ConAgra Foods, Inc. (No. 14-16327) pending a Supreme Court decision in Microsoft v. Baker is still in effect. The Ninth Circuit did address ascertainability in the third case discussed in that Legal BackgrounderBriseno v. ConAgra Foods, Inc. The January 3 decision presents a view sharply in contrast with that of certain other circuits, most notably the Third Circuit. Continue reading “With Ninth Circuit Exacerbating Judicial Discord on “Ascertainability,” Time For SCOTUS to Resolve Split”

A Peek at What’s to Come? : Federal Judge Allows “Public Trust” Climate-Change Suit to Proceed

sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP

A new President will be inaugurated today.  Based on statements by President-Elect Trump and the views of many in Congress, changes are expected in how the federal government will address climate change, especially in the manner it regulates CO2 emissions.

However, at the same time that elected federal officials may navigate such a new path, a group of plaintiffs in a pending Oregon case urge the judiciary to dictate a far different approach to climate change.  Specifically, in Juliana, et al. v. United States, a group of plaintiffs have sued various federal agencies alleging that those agencies have willfully ignored the harm climate change causes them.  The plaintiffs claim that such inaction violates their constitutional due process rights, and runs afoul of a common-law theory known as the “public trust” doctrine.  They seek an order directing the federal defendants to develop a national remedial plan to reduce CO2 emissions. Continue reading “A Peek at What’s to Come? : Federal Judge Allows “Public Trust” Climate-Change Suit to Proceed”

The Government Should Stop Using ‘Operation Choke Point’ to Bully Banks into Cutting Ties with Legitimate Businesses

imagezOn the eve of the inauguration, many industries and businesses await the changes a new administration will bring.  In particular, payday lenders are hoping that they will once again be able to enjoy unrestricted banking access, as for the past several years their banking relationships have slowly been severed as a result of a government initiative known as “Operation Choke Point.”

Operation Choke Point began—without any Congressional approval or even knowledge—as a product of President Obama’s 2009 executive order to eliminate fraudulent and illegal businesses.  Not surprisingly, however, the initiative quickly expanded.  By 2013, the Department of Justice (DOJ) had started quietly launching the now-infamous federal initiative unconstitutionally cutting off countless legitimate businesses from banking services. Continue reading “The Government Should Stop Using ‘Operation Choke Point’ to Bully Banks into Cutting Ties with Legitimate Businesses”

A 2017 Food-Court Resolution: End Regulation-through-Litigation Crusade Against Trans Fat

Partially hydrogenated oil chemical structure
Partially hydrogenated oil
chemical structure

In 2016, class-action lawsuits alleging that a processed food product or its labeling violated state consumer-protection laws continued to clog the federal courts, especially in California. The number of new food-related consumer class actions filed last year nearly equaled the number filed in 2015, according to a report in Food Navigator USA. It’s unclear whether these trends will hold in 2017, but there is one set of blatantly frivolous claims that should disappear this year: those that seek judicial regulation of products that contain partially hydrogenated oil (PHO), the main source of trans fat. A December 13, 2016 Southern District of California decision should frustrate such claims in the short term, and a forthcoming US Court of Appeals for the Ninth Circuit decision in a pending case may (and should) end them permanently. Continue reading “A 2017 Food-Court Resolution: End Regulation-through-Litigation Crusade Against Trans Fat”

Will Federal Circuit Finally Bring an End to “Form 18” Minimal Pleading for Direct Patent Infringement in 2017?

jhighGuest Commentary

By J High, Sidley Austin LLP*

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the US Supreme Court tightened the pleading standard for civil cases.  Because of a quirk of the exemplary forms formerly included with the Federal Rules of Civil Procedure (specifically, Form 18), the US Court of Appeals for the Federal Circuit held that Twombly and Iqbal did not apply to claims of direct infringement of a patent (In re Bill of Lading Transmission & Processing Sys. Pat. Litig.).  I discussed this state of affairs in two 2012 Washington Legal Foundation Legal Backgrounders (3/23/12 and 10/5/12).

This past fall, the Federal Circuit issued another decision on the pleading standard in patent cases, Lyda v. CBS Corp., 838 F.3d 1331 (Fed. Cir. 2016).  However, Lyda did not address the question many have been waiting for the Federal Circuit to answer—how to implement the pleading standard of Iqbal and Twombly for claims of garden-variety direct infringement after the abrogation of Form 18.  The district court proceedings in Lyda all occurred while Form 18 was part of the Federal Rules of Civil Procedure, and on appeal the Federal Circuit stated “that the repeal of Form 18 does not apply to this case.”  Id. at 1337 n.2. Continue reading “Will Federal Circuit Finally Bring an End to “Form 18” Minimal Pleading for Direct Patent Infringement in 2017?”