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November 2012 Archives

Will SCOTUS Let FLSA Defendants 'Buy Off' Putative Class Reps?

We all know that federal judges don't walk around handing out advisory opinions. To bring a matter before a federal court, you need a case or controversy.

But if a defendant makes the putative representative in a collective action an offer in full satisfaction of her claims, is the matter moot as to those who are similarly situated?

Monday, the Supreme Court will consider this question in Genesis HealthCare Corp. v. Symczyk.

Henderson v. US: Plenty of Unicorns, But Is There Plain Error?

When must an error be plain to qualify as a plain error?

Federal Rule of Criminal Procedure 52(b) says that appellate courts can consider a "plain" error, even if it wasn't brought to the trials court's attention. In Johnson v. United States, the Supreme Court held that, when the governing law on an issue is settled against the defendant at the time of trial, but then changes in the defendant's favor by the time of appeal, "it is enough that an error be 'plain' at the time of appellate consideration."

Johnson, however, didn't address the timing of plain error review when the governing law on an issue is unsettled at trial, but clarified in the defendant's favor while his appeal is pending. That was the issue the Supreme Court addressed Wednesday in Henderson v. U.S.

5 Things to Know: U.S. Airways v. McCutchen

Here at FindLaw, we understand the pressures of being a legal professional - most of us are recovering lawyers - so we want to help by tossing you that preferred life preserver of the legal profession, the short list.

The equitable remedies provision of ERISA Section 502(a)(3) has been a "hot topic" for years with the Supreme Court, according to BNA; every few years, the Court considers another case interpreting this provision in the context of plans' ability to seek reimbursement from plan participants who receive personal injury settlements. Here are five things you should know about the equitable remedies conflict in this term's ERISA case, U.S. Airways v. McCutchen.

Vance v. Ball State: Who Qualifies as a Supervisor?

On Monday, the Nine will return to Washington to consider the future of employment lawsuits in Vance v. Ball State University. More specifically, who qualifies as a supervisor?

In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Supreme Court held that an employer is vicariously liable under Title VII for severe or pervasive workplace harassment by a supervisor of the victim. If the harasser was the victim's co-employee, however, the employer is not liable absent proof of negligence.

Raisin d'Être: Court to Consider California Raisin Marketing

Raisins are sometimes known as nature's candy, but they're unlikely to be called free-market fodder. The healthy snack is a "heavily regulated" agricultural commodity under the Agricultural Marketing Agreement Act (AMAA) of 1937. Not that everyone is on board with such regulation.

The Supreme Court will consider a federal foray into raisin price-stabilization this term. On Tuesday, the Court granted certiorari in Horne, et al., v. U.S. Department of Agriculture.

Sixth Circuit Affirmative Action Ruling Is Not Another Fisher

Last week, the Sixth Circuit Court of Appeals ruled that Michigan's affirmative action ban was unconstitutional because it presents an extraordinary burden to opponents who would try to protect affirmative action, The Wall Street Journal reports. Michigan Attorney General Bill Schuette says he will appeal the decision.

After the ruling came down, people immediately start drawing comparisons to Fisher v. University of Texas, the affirmative action challenge that the Supreme Court is currently considering. Both are affirmative action cases, so they must be exactly alike, right?


Little Tucker Act Doesn't Waive Sovereign Immunity for FCRA Suit

One of the goals of the Fair Credit Reporting Act (FCRA) is protecting consumer privacy. To achieve that goal, FCRA prohibits a person that accepts credit cards or debit cards for payment from printing more than the last five digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.

A boutique or restaurant or cab driver that prints your full credit card number can be fined up to $10,000 for the compromising your privacy.

The federal government, however, may be immune from such penalties. Tuesday, the Supreme Court ruled in the first opinion of the 2012 Term that the Little Tucker Act does not waive the federal government’s sovereign immunity in damages actions for FCRA violations.

SCOTUS Grants Four New Cases, Rejects Princess Aspirations

The Supreme Court granted four new cases on Friday, including a new challenge to the Voting Rights Act. The excitement about the Voting Rights Act review was shortly eclipsed, however, by Justice Sonia Sotomayor's second appearance on Sesame Street.

Just so we can pretend to have our priorities in order, we're discussing the grants first.

2012 Term: What's on the Calendar for the January Sitting?

Two weeks into November, and the month is effectively over.

Presidential election? Done. Supreme Court sitting? Done.

The rest of the month is essentially a downward spiral to federal holidays, holiday parties, and 2013. And speaking of 2013, we have the argument calendar for the Supreme Court's session beginning on January 7.

Couldn't wait for that, could you?

Is Good Faith More Important Than Being Right?

How many people would file Fair Debt Collection Practices Act (FDCPA) claims if they feared that losing their lawsuits meant paying litigation costs?

The FDCPA provides that consumers who win lawsuits against debt collectors may recover their litigation costs from the defendants, but that consumers who lose these cases must pay defendants’ litigation costs only if the consumers sued in bad faith or for purposes of harassment.

This term, the Supreme Court will decide whether a plaintiff’s good faith cuts off the defendant’s right to fees, and how the FDCPA and Federal Rule of Civil Procedure (FRCP) 54(d) cost-awarding provisions interact with one another.

Smith v. US: Who Bears the Burden of Conspiracy Withdrawal?

Can a defendant withdraw from a conspiracy and beat the conspiracy rap? Who bears the burden of proving, or disproving, withdrawal?

The circuits are split on this issue. While the Second, Fifth, Sixth, Tenth, and Eleventh Circuits have said that the burden of proving withdrawal always rests on the defendant, the First, Third, Fourth, Seventh, and Ninth Circuit have held that, once the defendant meets his burden of production that he has withdrawn prior to the relevant limitations period, the burden of persuasion shifts to the government. Now it's up the Supreme Court to resolve the split.

This Week on First Street: Sandy, Sniffs, and Glam Justice

It's been a weird week on First Street: There were postponed arguments thanks to Superstorm Sandy, a Halloween hearing, and a new award for Justice Ruth Bader Ginsburg.

If you were affected by the storm, you probably haven't been following the Court this week. Here are a few highlights to bring you up to speed.