Supreme Court Update: Order List 11/28/11

November 29, 2011 Supreme Court Update

Greetings, Court fans!

We hope you enjoyed a restful and bountiful Thanksgiving holiday. Since our last Update, the Court has granted cert in the following cases:

Southern Union Company v. United States (11-94), which asks whether the Fifth and Sixth Amendment principles that the Court established in Apprendi v. New Jersey (2000) and its progeny apply to the imposition of criminal fines.

Vasquez v. United States (11-199), which presents two questions for review: (1) Whether the Seventh Circuit violated the Court's precedent on harmless error when it "focused its harmless error analysis solely on the weight of the untainted evidence without considering the potential effect of the error (the erroneous admission of trial counsel's statements that his client would lose the case and should plead guilty for their truth) on th[e] jury;" and (2) Whether the Seventh Circuit violated the defendant's Sixth Amendment right to a jury trial by "determining that [he] should have been convicted without considering the effects of the district court's error on the jury that heard the case."

Dorsey v. United States (11-5683) and Hill v. United States (11-5721), which have been consolidated, will consider whether the District Court in those cases erred in not sentencing the defendants pursuant to the Fair Sentencing Act of 2010 ("FSA"), where the defendants were sentenced after the effective date of the FSA and FSA-mandated amendments to the Sentencing Guidelines.

Finally, the outside sales exemption of the Fair Labor Standards Act exempts from the Act's overtime requirements "any employee employed ... in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary ...)." The Secretary of Labor has implemented various regulations that "define and delimit" the outside sales exemption and, in various amicus briefs, has interpreted these regulations to find the exemption inapplicable to pharmaceutical sales representatives. Christopher v. SmithKline Beecham Corp. (11-204) will address: (1) "Whether deference is owed to the Secretary's interpretation of the Fair Labor Standards Act's outside sales exemption and related regulations;" and (2) "Whether the Fair Labor Standards Act's outside sales exemption applies to pharmaceutical sales representatives."

That's it for now, but you can count on us to return when the Court does with more orders and opinions.

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