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Continuing the issuance of opinions as to which the Justices are largely of one mind, the Court today handed down three decisions. Each gives important guidance to litigators on both sides of the ball. The first of these is a unanimous opinion settling the hotly debated question of whether intent under the federal False Claims Act (FCA) is a subjective or objective matter. It is the former. The second decision, also unanimous, clarified what a plaintiff must plead and prove to establish securities fraud regarding a stock offering through a direct listing. The third case offers a lone dissent over a majority and concurring opinions rejecting a labor union’s argument that the National Labor Relations Act (NLRA) preempts a state court tort action concerning workers sabotaging a company’s concrete trucks.…

Continue Reading Health Care Fraud and Labor Unrest Top Today’s Docket – SCOTUS Today

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The Supreme Court issued no fewer than six opinions on Thursday, May 18, addressing questions including whether an internet platform might be held liable as an aider and abettor of terrorist activity, and whether Andy Warhol’s famous alterations of photos of the artist known as Prince violated the copyright of an almost-as-famous photographer.…

Continue Reading Six Decisions, with Intellectual Property and Internet Communications Regarding Terrorist Activity at the Forefront – SCOTUS Today

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While some people thrive in the land of TikTok dances, others struggle to limit their thoughts to 140 characters leading Twitter to increase their character limit to 280 in 2017. In fact, as of February 2019 Internet users believe social media platforms have increased access to information and the ease of communication by 57 percent.…

Continue Reading Time to Reboot the Internet? The Supreme Court Hears Challenges to Big Tech Platforms

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The Supreme Court issued a single opinion today. Wilkins v. United States concerns a property rights dispute between the federal government and two owners of land near the Bitterroot National Forest in rural Montana to which the government claims an easement that, it argues, includes public access, which the petitioners dispute. They, therefore, sued the government under the Quiet Title Act (the “Act”), which allows challenges to the United States’ rights in real property. The government moved to dismiss on the ground that the petitioners’ claim is barred by the Act’s 12-year statute of limitations. See 28 U. S. C. §2409a(g). The issue before the Court was whether the time bar is jurisdictional or, as the Court held in a 6-3 decision, a nonjurisdictional claims-processing rule.…

Continue Reading Jurisdictional or Nonjurisdictional? That Is the Question: SCOTUS Today

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The Supreme Court decided two cases today, and though neither of them presents the sort of widely consequential matter that, say, the President’s student loan forgiveness plan that was argued this morning does, each has interesting aspects. Both are decided on the now-vogueish doctrine of textualism, though each shows divisions among the Justices that prove again that not only can Justices who have differing jurisprudential philosophies agree with one another as to statutory meaning, but that Justices with the same jurisprudential philosophy can disagree with one another on text as well. Thus, while there are cases, like Dobbs, where one might accurately predict the outcome on the basis of philosophy or alignment with the preferences of the President who nominated various Justices, there is a host of cases where labels don’t hold up at all.…

Continue Reading Unusual Groupings of Justices Decide Two Cases Involving Contradictory Applications of Textualism – SCOTUS Today

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The Court has broken the logjam of pending opinions, rendering three decisions today, one of which, dealing with the issue of when overtime pay is mandated under the Fair Labor Standards Act (FLSA), might have a broader effect. So, let’s start with that one: Helix Energy Solutions Group, Inc. v. Hewitt.…

Continue Reading High-Earning Worker Entitled to Overtime Pay, Death-Row Inmate Can Challenge Punishment, and Bankruptcy Can’t Discharge Fraudulent Debt – SCOTUS Today

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Now that the Supreme Court of the United States has declared that authority to regulate abortion rests with the states, organizations operating across state lines face new and some unprecedented challenges created by the civil and criminal legal issues arising from risks of enforcement in any state where abortion is or will be banned (a “ban state”). Health care providers, employers, and other organizations with any nexus to such states will need to conduct careful analyses and may have to accept an unknown level of enforcement risk while various jurisdictions respond to their newfound power and determine if and how to wield it. The risks may extend to providers who deliver abortions, patients seeking abortions, companies who support their employees traveling to non-ban states to receive abortions, and their executives. The outer parameters of who is subject to enforcement risk are presently unknown but are likely to vary from jurisdiction to jurisdiction.
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Continue Reading The Impact of Dobbs: Enforcement Risks to Expect and Monitor

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With his retirement to begin on June 30 at noon, Justice Breyer leads a 5-4 split in Torres v. Texas Department of Public Safety, with the Chief Justice and Justice Kavanaugh, along with Justices Sotomayor and Kagan, joining him in holding that, by virtue of the states having ratified the Constitution, they agreed that their sovereignty would yield to the national power to raise and support the Armed Forces. Accordingly, Congress may exercise this national power to authorize private damages suits against nonconsenting states. Congress did just that when it passed the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which gives returning servicemembers the right to reclaim their prior jobs with state employers, and authorizes suit if those employers refuse to accommodate veterans’ service-related disabilities. See 38 U. S. C. § §4301 et seq.
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Continue Reading A Divided Court Rules Against States in Veterans’ Employment and Indian Country Criminal Jurisdiction Cases: SCOTUS Today