Is D.C. Circuit’s Data-Breach Standing Decision a Tipping Point for High Court Review?

cohen-david-tGuest Commentary by David T. Cohen, Counsel at Ropes & Gray LLP in its New York, NY office.

Article III of the U.S. Constitution requires all private litigants in federal court to establish “standing,” that is, to show that they are proper litigants to raise the defendant’s alleged legal violations with the court. To have standing, a plaintiff must face an actual or sufficiently imminent future injury from the legal violation.  Several recent federal appellate decisions have grappled with the issue of when, if ever, a plaintiff whose personal information was compromised in a data breach—but who has suffered no actual harm from that compromise—faces a sufficiently imminent future harm to have Article III standing.

One such recent case stands out from the pack, both because it hails from the particularly prominent U.S. Court of Appeals for the D.C. Circuit, and because it is the subject of a forthcoming petition for a writ of certiorari, setting the stage for what could become the first-ever ruling by the U.S. Supreme Court on the issue in a data breach matter. Continue reading “Is D.C. Circuit’s Data-Breach Standing Decision a Tipping Point for High Court Review?”

SCOTUS Seeks Solicitor General’s Views on Apple’s Cert. Petition in Antitrust Suit

app storeIn an orders list issued today, the U.S Supreme Court invited the Solicitor General of the United States to file a brief expressing the federal government’s views on the petition for certiorari in Apple, Inc. v. Pepper. The case, in which Washington Legal Foundation filed an amicus brief supporting Apple’s request for review, involves a forty-year old Supreme Court doctrine dictating that only direct purchasers of good or services may file private enforcement actions under federal antitrust laws.

The Court occasionally seeks the federal government’s views on a petition for certiorari in cases in which the government is not directly involved, but that implicate significant federal interests. In Supreme Court-speak, this is known as a CVSG: Calling for the Views of the Solicitor General. Continue reading “SCOTUS Seeks Solicitor General’s Views on Apple’s Cert. Petition in Antitrust Suit”

Pending High Court Case Tests Congress’s Authority to Detain and Deport Criminal Aliens

supreme courtThe US Supreme Court on October 3, 2017 will hear oral arguments for the second time in an important immigration case, Jennings v. Rodriguez.  The Court was unable to reach a decision the first time around, apparently because it divided 4-4 on how to resolve the case.  A key issue in the case is which constitutional body—Congress or the federal courts—gets to make policy governing the treatment of aliens convicted of serious crimes.

An unbroken line of Supreme Court precedent (including 1976’s Mathews v. Diaz) provides a ready answer to that question: immigration policy is “so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”  Congress determined that aliens convicted of serious crimes should be deported and should be detained pending final removal; courts should not be second-guessing that determination. Continue reading “Pending High Court Case Tests Congress’s Authority to Detain and Deport Criminal Aliens”

No “Daubert”-Style Gatekeeping in Alabama for Expert Testimony Based on Technical or Specialized Knowledge

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

By Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

In federal courts, Daubert v. Merrell Dow Pharmaceuticals, Inc. applies not only to scientific testimony but also to technical and other specialized knowledge. That principle stems from the text of Federal Rule of Evidence 702(a)—which expressly references an “expert’s scientific, technical, or other specialized knowledge”—and the US Supreme Court’s holding in Kumho Tire v. Carmichael, which extended Daubert’s gatekeeping responsibilities to technical and specialized knowledge. Put simply, Daubert provides a generally applicable rule for how federal judges should ascertain the reliability of expert testimony.

The same is not true in Alabama. In 2011, the Alabama Legislature adopted the Daubert standard and modified Alabama Rule of Evidence 702 to provide: Continue reading “No “Daubert”-Style Gatekeeping in Alabama for Expert Testimony Based on Technical or Specialized Knowledge”

“U.S. v. Martoma”: Second Circuit’s Latest, but Perhaps not Last, Word on Insider-Trading Tippee Liability

Featured Expert Contributor, Corporate Governance/Securities Law

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

Matthew Martoma was a portfolio manager at S.A.C. Capital Advisors, LLC, a hedge fund owned and managed by Steven A. Cohen, which had been the subject of numerous insider trading investigations. One of those investigations resulted in Martoma being charged with insider trading on the stocks of a pair of drug companies developing a new Alzheimer’s disease drug treatment. Martoma had received tips of material nonpublic information about the treatment from two drug company employees. Martoma was convicted and appealed.

In a 2-1 opinion by Chief Judge Katzmann, the Second Circuit affirmed Martoma’s conviction. Its decision in United States v. Martoma is the first major interpretation of the Supreme Court’s decision in Salman v. United States, and the first effort to determine the remaining scope, if any, of the Second Circuit’s 2014 decision in United States v. Newman. Continue reading ““U.S. v. Martoma”: Second Circuit’s Latest, but Perhaps not Last, Word on Insider-Trading Tippee Liability”

California Supreme Court Expands Scope of Discovery in Representative Actions under Private Attorneys General Act

JohnQuieroLE - resized [45] 170504_0034_1a_square2Guest Commentary

By John F. Querio, a Partner, and Lacey L. Estudillo, an Appellate Fellow, with Horvitz & Levy LLP.

On July 13, 2017, the California Supreme Court decided Williams v. Superior Court, which expanded a plaintiff’s discovery rights in actions brought pursuant to California’s Private Attorneys General Act (PAGA).  PAGA permits an employee to bring a representative action “‘on behalf of himself or herself and other current or former employees’ to recover civil penalties” for wage-related violations of California’s Labor Code—penalties that were previously recoverable solely by the state’s labor-law enforcement agencies.  Amalgamated Transit Union, Local 1756 v. Superior Court, 46 Cal. 4th 993, 1003 (2009). Continue reading “California Supreme Court Expands Scope of Discovery in Representative Actions under Private Attorneys General Act”

Ambiguity Eclipses Clarity in Two Post-“Spokeo” Standing-to-Sue Decisions

9thCirIn addition to an America-only total solar eclipse, August has brought us a remarkable flurry of significant federal appeals court decisions. Among those decisions were two that addressed a hotly contested procedural issue: plaintiff’s standing to sue for violation of a federal statute.

The rulings, both of which interpreted and applied the 2016 US Supreme Court Spokeo, Inc. v. Robins decision, further clarified that decision’s main holding while also exacerbating the confusion over what constitutes a “concrete and particularized” injury.

We’ve written quite a bit about Spokeo and its progeny here. There, the Court held that plaintiffs alleging a “bare procedural violation” of a federal statute do not meet the “case or controversy” standing requirement of Article III of the US Constitution. Such litigants must also claim an injury-in-fact, i.e. a harm that is concrete and particularized to them. Justice Alito’s opinion offered very little guidance on how courts should make that determination. Continue reading “Ambiguity Eclipses Clarity in Two Post-“Spokeo” Standing-to-Sue Decisions”