Commercial Litigation Update

Of the four cases decided today, the one that likely pertains to the largest number of this blog’s readers is Coinbase, Inc. v. Bielski, a 5-4 opinion delivered by Justice Kavanaugh, who wrote for himself, the Chief Justice, and Justices Alito, Gorsuch, and Barrett. Interestingly, Justice Thomas largely joined Justice Jackson’s dissenting opinion.

With four decisions today, the Court has now cut its backlog down to the mid-teens. And with decisions likely tomorrow as well, the Court is well on its way to clearing the docket as the term ends.

On January 9, 2023, the Supreme Court held oral arguments on a significant issue regarding the application of the attorney-client privilege in a case called In re Grand Jury, Docket No. 21-1397, 598 U.S. ___ (2023). In re Grand Jury was appealed to the Supreme Court from the Ninth Circuit. The issue before the Supreme Court was which test should apply to a “dual-purpose” communication. A dual-purpose communication occurs when a communication may have a business purpose, but also asks for legal advice. This type of communication is typical between lawyers providing both legal and business advice to employers, and it is very common for lawyers in an in-house counsel role to frequently have dual-purpose communications with their employers. Although the Supreme Court decided to dismiss the writ of certiorari after oral arguments occurred in this case, it is important to understand why this test would have been significant to all different types of attorneys, especially because it is becoming increasingly more common for attorneys to wear “two hats” by providing both business advice and legal advice regularly to clients.

While many commentators were wondering when the Supreme Court would start issuing opinions, the backlog of argued cases now being substantial, today is their day.

The Supreme Court is back in live session, and so is this blog.

The Supreme Court recently granted certiorari in In re Grand Jury to resolve a circuit split regarding what standard governs the application of the attorney-client privilege to dual-purpose communications, that is communications which contain both legal and non-legal advice. The petition was filed on behalf of an unnamed law firm which asserted the privilege in response to a federal grand jury subpoena.

Coming off the decisions in the landmark Dobbs and Bruen cases, the rest of the term might seem anticlimactic. Nevertheless, as the shelf is being cleared of the remaining cases, there are still rulings of significance to come. As the week opened, one of them—a religious freedom case—likely didn't surprise anyone who listened to the oral argument or, indeed, who has been paying attention to the conservative Justices having changed the valences in religious liberty cases. The other two cases decided on the opening day of the week were both criminal cases of limited interest, but important nevertheless.

Despite a large list of argued cases pending decision, the Court decides just two of them today—neither of them Dobbs.

The Supreme Court decided two more cases today, one unanimously, the other anything but so.

Yesterday, in United States v. Zubaydah, the Court upheld the government’s assertion of the state secrets privilege, rejecting an al Qaeda terrorist leader’s discovery request for information concerning his torture by the CIA. The Court continued its interest in the privilege in today’s unanimous opinion, authored by Justice Alito, in Federal Bureau of Investigation v. Fazaga.

The Court has decided two important cases today, United States v. Zubaydah, upholding the government’s assertion of the state secrets privilege and rejecting the al Qaeda terrorist leader’s discovery request for information concerning his torture by the CIA, and Cameron v. EMW Women’s Surgical Center, P.S.C., allowing the intervention of the Kentucky attorney general to assume the defense of the state’s abortion law after the official who had been defending the law decided not to seek further review. Both cases are, at root, about significant issues of public interest and policy—the torture of terrorists and restrictive abortion policies—but neither opinion resolves any such question. Indeed, the lessons learned from each of these cases are essentially procedural, and though the outcomes are determined by significant margins, the alliances of Justices on the multiple opinions published are also instructive.

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "Two 'GVRs' Show Continued Restraint by the Justices."

The following is an excerpt:

The Court issued two per curiam opinions today, both of them granting cert., vacating the judgments below, and remanding the cases to a lower court for further factual inquiry, a procedure known colloquially as a “GVR.” Both of these unsigned opinions represent restraint, deferring to trial courts for factual findings and deferring reaching legal issues until it ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "Three More Cases Demonstrating Jurisprudential Reason, Not Politics."

The following is an excerpt:

Another busy day for the Court, which is no surprise given the short time remaining in the term and the number of opinions that yet have been published. If there is a distinguishing characteristic, it is the continued fracturing of the stereotype that the Justices act for political, not jurisprudential reason, and hence that there are immovable blocs of ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "A Placid Beginning to the Last Month of the Term."

The following is an excerpt:

This morning begins what many are anticipating to be an exciting last month of the 2020 term. Among other things, we expect to find out about the continued viability of the Affordable Care Act, and several First Amendment matters, including the extent to which religious expression trumps antidiscrimination laws, and the ability of a school to sanction off-campus speech. These ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "A Unanimous Court Applies Unambiguous Statutory Requirements in Two New Decisions".

The following is an excerpt:

The Court is in full-majority mode today, again focusing on text rather than more abstract notions of policy.

In Territory of Guam v. United States, a unanimous Court, in an opinion written by Justice Thomas, reversed the D.C. Circuit and revived Guam’s suit against the U.S. Navy, seeking $160 million because of pollution at a waste ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Court at Peace".

The following is an excerpt:

Given that there was a good deal of media interest in Justice Sotomayor’s somewhat vituperative dissenting criticism of Justice Kavanaugh in last week’s decision in the criminal sentencing case of Jones v. Mississippi¸ today’s per curiam GVR (Grant, Vacate, and Remand) order in Alaska v. Wright is worthy of at least passing mention.

Once again, the Ninth Circuit is reversed, this time ...

Our colleagues Stuart Gerson and Daniel Fundakowski of Epstein Becker Green have a new post on SCOTUS Today that will be of interest to our readers: "Court Declines Resolving Circuit Split on What Constitutes a 'False' Claim, but Will Consider Legality of Trump Abortion Gag Rule."

The following is an excerpt:

While this blog usually is confined to the analysis of the published opinions of the Supreme Court, several of this morning’s orders are worthy of discussion because of their importance to health care lawyers and policy experts. Guest editor Dan Fundakowski joins me in ...

In July, we reported (here) on a Third Circuit decision that held an out-of-network provider’s direct claims against an insurer for breach of contract and promissory estoppel were not pre-empted by ERISA. That opinion was a significant win for healthcare providers. Recently, there has been another important win for out-of-network providers—this time from the Ninth Circuit.

In Beverly Oaks Physicians Surgical Ctr., LLC v. Blue Cross & Blue Shield of Illinois, 983 F.3d 435, 442 (9th Cir. 2020), an out-of-network surgical center sued Blue Cross for improperly refusing to ...