Supreme Court Update: October 2010 Term Kick-Off

October 4, 2010 Supreme Court Update

Greetings, Court fans!

The October 2010 Term has arrived and the Justices appear to be chomping at the bit to get started. Instead of waiting for the traditional first Monday in October to release the first order list, the Court instead released a "miscellaneous order" last Thursday, with numerous cert grants. But before we get to them, I want to introduce my new co-author, Jenny Chou. Jenny focuses her practice on appeals and white collar defense and investigations. She also happens to be an avid Court follower and a gifted writer. I'm so glad to have her on board. Now, on to the cert grants:

Thompson v. North American Stainless (09-291) asks (1) whether Section 704(a) of Title VII forbids an employer from retaliating against an employee for engaging in certain protected activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee, and (2) if so, may that prohibition be enforced in a civil action brought by the third party victim?

The next case addresses the "relitigation exception" to the Anti-Injunction Act, which applies when, inter alia, the state court parties sought to be estopped are the same parties or in privity with parties to the prior federal litigation and the issues necessary to the resolution of the proceedings are identical. In determining whether issues are identical, courts have recognized that state courts should have discretion to apply their own procedural rules in a manner different from their federal counterparts. Smith v. Bayer (09-1205) presents two questions for review: (1) Can a federal district court's injunction be affirmed when neither the state court parties sought to be estopped nor the issues presented are identical; and (2) Does a district court have personal jurisdiction over absent members of a class for purposes of enjoining them from seeking class certification in state court when a properly conducted class action never existed before the district court because it had denied class certification?

Kentucky v. King (09-1272) asks: When does lawful police action—such as knocking on a door—impermissibly "create" exigent circumstances that preclude warrantless entry; and which of the five tests currently being used by the United States Courts of Appeals is proper to determine when impermissibly created exigent circumstances exist?

Astra USA, Inc. v. Santa Clara County, CA (09-1273) deals with Section 340B of the Public Health Service Act, which imposes a ceiling on the prices that drug manufacturers may charge specified health care facilities and entities, known as Section 340B entities. As a condition of participation in Medicaid, drug manufacturers must enter into contracts with the Secretary of Health and Human Services setting forth the Act's pricing restrictions, but the Act does not provide a private right of action. The question presented is whether federal courts may nevertheless confer a private right of action (here, for the Section 340B entities) because the statutory requirement sought to be enforced is embodied in a contract.

Exemption 7(C) of the Freedom of Information Act exempts from mandatory disclosure records or information compiled for law enforcement purposes when such disclosure could reasonably be expected to constitute an unwarranted invasion of "personal privacy." FCC v. AT&T Inc. (09-1279) asks whether Exemption 7(C) protects the "privacy" of corporate entities?

General Dynamics Corp. v. United States (09-1298) has been consolidated with Boeing Company v. United States (09-1302). Together, they ask the Court to determine whether the government can maintain its affirmative claim against a party when it invokes the state-secrets privilege to bar presentation of a prima facie valid defense to that claim.

J. Mclntyre Machinery, LTD. v. Nicastro (09-1343) and Goodyear Luxembourg Tires v. Brown (10-76) are to be argued in tandem. J. Mclntyre Machinery asks whether a state may exercise in personam jurisdiction over a foreign manufacturer pursuant to the stream-of-commerce theory solely because the manufacturer targets the United States market for the sale of its product and the product is purchased by a forum state consumer. Goodyear Luxembourg Tires asks whether a foreign corporation is subject to general personal jurisdiction, on causes of action not arising out of or related to any contacts between it and the forum state, merely because other entities distribute in the forum state products placed in the stream of commerce by the defendant.

The question presented in United States v. Tinklenberg (09-1498) is whether the time period between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act of 1974, or is instead excluded only if the motion actually causes a postponement, or the expectation of a postponement, of the trial.

In Bullcoming v. New Mexico (09-10876), the Court will revisit the requirements for introducing forensic test results. The question presented this time around is whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Sykes v. United States (09-11311) asks whether using a vehicle while knowingly or intentionally fleeing from a law enforcement officer after being ordered to stop constitutes a "violent felony" under the Armed Career Criminal Act.

In Stern v. Marshall (10-179), the Court will revisit the fight between Anna Nicole Smith and the son of her former billionaire husband J. Howard Marshall II (now all deceased). While the facts surrounding the case certainly are titillating, the questions presented are not – unless, perhaps, you're a bankruptcy practitioner. In essence, the case asks whether a bankruptcy estate's compulsory counterclaim against a person filing claims against the estate is a "core" proceeding (such that the bankruptcy court's order will not be subject to de novo review by the district court) where the counterclaim raises some issues beyond that presented in the claim against the estate.

Schindler Elevator Corp. v. United States (10-188) asks whether a federal agency's response to a Freedom of Information Act request is a "report ... or investigation" within the meaning of the False Claims Act public disclosure bar.

Finally, in Freeman v. United States (09-10245), the Court is asked to determine if a criminal defendant is ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2), which permits a sentence reduction when a guidelines range is lowered by the Sentencing Commission after the defendant has been sentenced, where he has been sentenced based on a plea agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure.

We look forward to following a busy and exciting 2010 Term with you.

Kim & Jenny

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