Supreme Court Update: Order List 10/1/13 and 10/7/13

October 8, 2013 Supreme Court Update

Greetings, Court fans!

We can hardly believe that the October 2013 Term has arrived, with the first arguments of the term and a handful of SG invites yesterday. Unofficially, activity began with a number of cert grants last week.

Filling in its docket, the Court has decided to hear the following cases this term:

Harris v. Quinn (11-681), which asks: (1) "May a State, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the State for greater reimbursements from its Medicaid programs?" and (2) "Did the lower court err in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review?"

Highmark Inc. v. Allcare Health Management Sys. (12-1163), a Patent Act case, which asks: "Whether a district court's exceptional-case finding under 35 U.S.C. § 285, based on its judgment that a suit is objectively baseless, is entitled to deference."

Octane Fitness, LLC v. Icon Health & Fitness, Inc. (12-1184), another Patent Act case, which asks: "Does the Federal Circuit's promulgation of a rigid and exclusive two-part test for determining whether a case is ‘exceptional' under 35 U.S.C. § 285 improperly appropriate a district court's discretionary authority to award attorney fees to prevailing accused infringers in contravention of statutory intent and this Court's precedent, thereby raising the standard for accused infringers (but not patentees) to recoup fees and encouraging patent plaintiffs to bring spurious patent cases to cause competitive harm or coerce unwarranted settlements from defendants?"

Marvin M. Brandt Revocable Trust v. United States (12-1173), which asks: "Did the United States retain an implied reversionary interest in [General Railroad Right-of-Way Act of 1875] rights-of-way after the underlying lands were patented into private ownership?"

Petrella v. MGM, Inc. (12-1315), which asks: "Whether the nonstatutory defense of laches is available without restriction to bar all remedies for civil copyright claims filed within the three-year statute of limitations prescribed by Congress, 17 U.S.C. § 507(b)."

United States v. Castleman (12-1371), which asks: "Whether respondent's Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a ‘misdemeanor crime of domestic violence.'"

United States v. Quality Stores, Inc. (12-1408), which asks: "Whether severance payments made to employees whose employment was involuntarily terminated are taxable under the Federal Insurance Contributions Act, 26 U.S.C. 3101 et seq."

And, Navarette v. California (12-9490), which asks: "Does the Fourth Amendment require an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle?"

That makes 52 merits cases on this term's calendar so far – with plenty of room for more. The Court has asked the SG to weigh in on the following petitions:

Young v. United Parcel Service, Inc. (12-1226), which would ask: "Whether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are ‘similar in their ability or inability to work.'"

U. S., Ex Rel. Nathan v. Takeda Pharmaceuticals (12-1349), which would consider: "Whether Rule 9(b) requires that a complaint under the False Claims Act ‘allege with particularity that specific false claims actually were presented to the government for payment' … or whether it is instead sufficient to allege the ‘particular details of' the ‘scheme to submit false claims' together with sufficient indicia that false claims were submitted."

Medtronic, Inc. v. Stengel (12-1351), which would ask: "Whether the [Medical Device Amendments to the Federal Food, Drug, and Cosmetic Act] preempts a state-law claim alleging that a medical device manufacturer violated a duty under federal law to report adverse-event information to the FDA."

Kellogg Brown & Root v. United States, Ex Rel. Carter (12-1497), which would ask two questions: (1) "Whether the Wartime Suspension of Limitations Act—a criminal code provision that tolls the statute of limitations for ‘any offense' involving fraud against the government ‘[w]hen the United States is at war,' 18 U.S.C. § 3287— … applies to claims of civil fraud brought by private relators, and is triggered without a formal declaration of war, in a manner that leads to indefinite tolling;" and (2) Whether "the False Claims Act's so-called ‘first-to-file' bar, 31 U.S.C. § 3730(b)(5) … functions as a ‘one-case-at-a-time' rule allowing an infinite series of duplicative claims so long as no prior claim is pending at the time of filing."

Maersk Drilling USA v. Transocean Offshore Deepwater (13-43), which would ask: "Whether offering, negotiating, and entering into a contract in Scandinavia to provide services using a potentially patented device constitutes an ‘offer to sell' or ‘sale' of an actually patented device ‘within the United States,' under 35 U.S.C. § 271(a)."

And, finally, the Court sought the SG's views on Thurber v. Aetna Life Insurance Co. (13-130), which would ask: (1) "Whether an ERISA Plan may enforce an equitable lien by agreement under § 502(a)(3) where it has not identified a particular fund that is in the defendant's possession and control at the time the Plan asserts its equitable lien;" and (2) "Whether a discretionary clause in an ERISA plan mandating that an abuse-of-discretion standard of judicial review be applied to a § 502(a)(1)(B) denial-of-benefits claim is enforceable when the clause was never disclosed to the participant in any plan document … or whether the Plan must give participants and beneficiaries clear notice of such a clause."

We'll keep you posted as the Court fills its dance card. Meanwhile, happy fall!

Kim, Jenny & Julie