Order List

October 8, 2008 Supreme Court Update

Greetings, Court Fans!
We're back with a short Update based on the Court's order list from Monday. There were no new grants from the Court's "long conference" of all the cases that piled up over the summer. Instead, the Court denied review in some 1800 cases and issued various orders in other pending cases. Among those orders were two invitations to the Solicitor General ("SG") to brief the government's views on two pending cert petitions. At the very least, these petitions intrigued some of the Justices, so they may be worth watching as the Court may ultimately grant review. The two cases and their questions presented are:
Albertson's, Inc. v. Kanter (07-1327): In this case, the California Supreme Court held that private plaintiffs could bring a class action to enforce the Federal Food, Drug, and Cosmetic Act ("FDCA") under state law, despite the fact that the statute requires all enforcement proceedings to be brought by the federal government or, under certain conditions, state governments. The petition asks "Are private parties' state law claims to enforce FDCA requirements preempted by Congress' mandate that the Act be enforced only by the federal or state governments?"
Trainer Wortham Co. v. Betz (07-1489): This statute of limitations case stems from a securities fraud lawsuit in which Betz claimed that her advisor had promised to earn her a sizable return on her investment without touching her principal, but who waited to sue for more than four years after receiving notice her principal was dwindling. The questions presented are: "(1) Did the Court of Appeals err in concluding that the statute of limitations begins to run not from the moment the plaintiff is on inquiry notice that there may have been a misrepresentation (as some circuits have held), and not from the subsequent point at which a reasonable investigation would have revealed that she had a possible fraud claim (as other circuits have held), but only from the point at which she receives evidence that the investment advisor intended to defraud her? (2) Did the Courts of Appeals err in holding that an investor who is on inquiry notice that she has a basis for a fraud claim, and is, therefore, obliged to make a reasonable inquiry, may reasonably end her investigation just because the suspected defrauders have made assurances that contradict known facts?"
In other news, the Court began hearing arguments Monday, with nine cases on the calendar for the week. Among those nine, we're particularly interested in Vaden v. Discover Bank (07-773), which concerns federal court jurisdiction over motions to compel arbitration under the Federal Arbitration Act. The Act itself does not give courts subject matter jurisdiction over petitions to compel arbitration; as a result, petitioners must establish diversity jurisdiction or somehow find a federal question to support the petition. The question in Vaden is whether courts can "look through" a petition to the underlying dispute between the parties to see if it poses a federal question. Employment lawyers also may be interested in Crawford v. Nashville & Davidson County, Tenn. (06-1595) , which asks whether the anti-retaliation provisions of Title VII protect a worker from dismissal because she cooperated with an internal sexual harassment investigation.
That's it for now. Thanks, as always, for reading!
Ken & Kim

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400