Supreme Court Update: Order Lists 10/3/11 and 10/11/11

October 13, 2011 Supreme Court Update

Greetings, Court fans!

The Court has been busy separating the wheat from the chaff. As is typical this time of year, the Court issued an order declining to hear several hundred cases. It granted cert in only two additional cases and invited the Acting Solicitor General to weigh-in on whether cert should be granted in a handful of others (suggesting that it has at least some interest in hearing those cases).

The Court agreed to hear:

Freeman, Tammy F., Et Vir v. Quicken Loans, Inc. (10-1042), where it will decide "[w]hether Section 8(b) of the [Real Estate Settlement Procedures Act] prohibits a real estate settlement services provider from charging an unearned fee only if the fee is divided between two or more parties."

Blueford v. Arkansas (10-1320), where the Court will consider "[w]hether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense."

The SG invites came in these cases:

DIRECTV, Inc. v. Levin (10-1322), which presents two question for review: "(1) Whether, in a Commerce Clause challenge to a state statute, courts need not examine the effects of the statute if it can be characterized as distinguishing between two competitors based upon their different methods of operation; and (2) whether courts need not examine the statute's effects because some of the beneficiaries of the discriminatory scheme are major interstate companies."

Sandy Creek Energy v. Sierra Club, Inc. (10-1333), which asks: "Whether, after construction of a power plant has begun in reliance on the issuance of a lawful preconstruction permit reflecting that there was no Maximum Achievable Control Technology ("MACT") requirement then in force, a new MACT determination requirement can be compelled during construction, contrary to EPA regulations and judicial interpretations of closely related provisions of the Clean Air Act."

Cook v. Rockwell Int'l Corp. (10-1377), where the Court would be asked to determine: "(1) Whether state substantive law controls the standard of compensable harm in suits under the Price-Anderson Act, or whether the Act instead imposes a federal standard; and (2) whether, if a federal standard applies, a property owner whose land has been contaminated by radioactive plutonium, resulting in lost property value, must show some physical injury to the property beyond the contamination itself in order to recover for damage to property."

Fein, Such, Kahn and Shepard, P.C. v. Allen (10-1417), poses this question: "Is a communication from a debt collector to a debtor's attorney actionable under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.?"

Pacific Merchant Shipping Ass'n v. Goldstene (10-1555), would present more Dormant Commerce Clause issues for the Court's review: "(1) Whether the Commerce Clause and the Supremacy Clause prohibit California's extraterritorial exercise of its police powers to require the use of specified low-sulfur fuels on foreign- and U.S.-flagged vessels engaged in foreign and interstate commerce while these ships are on the high seas; (2) Whether, by establishing the measure of California's seaward boundary at three geographical miles distant from its coast line, the Submerged Lands Act preempts California's regulations that require foreign- and U.S.-flagged vessels engaged in international and interstate commerce to use specified low-sulfur fuels while those ships are navigating outside of the State's three-mile seaward territorial boundary so established."

That's it for this week. We'll be back with more orders as they arrive.

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