David Kemp

On January 31, 2017, President Donald Trump announced that he would nominate Judge Neil M. Gorsuch, of the U.S. Court of Appeals for the Tenth Circuit, for the U.S. Supreme Court. If confirmed, Judge Gorsuch would take up the seat vacated by the late Justice Antonin Scalia, who died last year.

Here’s what you might want to know about Judge Gorsuch:

• Judicial Service: He currently serves as a judge on the U.S. Court of Appeals for the Tenth Circuit. He was nominated for that position by George W. Bush on May 10, 2006, to fill a seat vacated by David M. Ebel. Judge Gorsuch was confirmed by the Senate on July 20, 2006, and received commission on August 8, 2006.

Today, the U.S. Supreme Court handed down its decision in the much-anticipated case Burwell v. Hobby Lobby Stores, Inc. (formerly Sebelius v. Hobby Lobby Stores, Inc., consolidated with Conestoga Wood Specialties Corp. v. Burwell and Autocam Corp. v. Burwell).

In a 5-4 opinion by Justice Samuel Alito, the Court held that the Religious Freedom Restoration Act (RFRA) permits a closely held for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by the federal Patient Protection and Affordable Care Act of 2010 (ACA), based on the religious objections of the corporation’s owners.

Here is some commentary tracking the progress of these cases before the Court’s ruling:

• Vikram David Amar and Alan Brownstein, Consistency in the Treatment of Religious Liberty Claims: Hobby Lobby and Town of Greece Viewed Side by Side (February 28, 2014)
• Vikram David Amar and Alan Brownstein, The Narrow (and Proper) Way for the Court to Rule in Hobby Lobby’s Favor (April 11, 2014)
• Michael Dorf, Supreme Court Oral Argument Shows How Religious Freedom Claims Have Become Ideologically Charged (March 26, 2014)
• Marci Hamilton, Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible (July 11, 2013)
• Marci Hamilton, The Insatiable Demand for Extreme Religious Liberty Under the RFRAs, Part I: Why Hobby Lobby Falls Outside RFRA’s Protections (March 6, 2014)
• Marci Hamilton, The Lessons of the New Mississippi RFRA that Shed Light on the Hobby Lobby and Conestoga Wood Cases Pending at the Supreme Court (May 15, 2014)
• Marci Hamilton, What RFRA Has Wrought: Hobby Lobby, Onionhead, and the Perils of Religious Triumphalism (June 16, 2014)

Below are the relevant dockets and opinions in the lower courts:

Hobby Lobby

• U.S. District Court for the Western District of Oklahoma
  • Docket: Hobby Lobby Stores Inc. v. Sebelius
  • Opinion: Hobby Lobby Stores Inc. v. Sebelius (November 19, 2012)
• U.S. Court of Appeals for the Tenth Circuit
  • Docket: Hobby Lobby Stores Inc. v. Sebelius
  • Opinion: Hobby Lobby Stores Inc. v. Sebelius (June 27, 2013)

Conestoga Wood

• U.S. District Court for the Eastern District of Pennsylvania
  • Docket: Conestoga Wood Specialties Corp. v. Sebelius
  • Opinion: Conestoga Wood Specialties Corp. v. Sebelius (January 11, 2013)
• U.S. Court of Appeals for the Third Circuit
• • Docket: Conestoga Wood Specialties Corp. v. Sec’y U.S. Dep’t of Health & Human Servs.
  • Opinion: Conestoga Wood Specialties Corp. v. Sec’y U.S. Dep’t of Health & Human Servs. (July 26, 2013)

Here are some resources for the consolidated cases before the U.S. Supreme Court:

• Oral Argument and Transcript (via SupremeCourt.gov)
• Merit and Amicus Briefs Filed (via American Bar Association)
• Opinion: Burwell v. Hobby Lobby Stores, Inc.

The  famously versatile hot sauce Sriracha may be in legal hot water. Its manufacturer, Huy Fong Foods, Inc., is facing a public nuisance lawsuit brought by the town in which its manufacturing facility resides. According to the complaint, odors and irritants from the facility are causing physical harm and discomfort to the residents of the town of Irwindale. The city allegedly received several complaints about the facility and as a result arranged to meet with a representative from the company to address the problem. Although the representative reportedly agreed to take measures to correct the problem, there was no change in the emanation of offensive odors from the factory.

According to the complaint, the city issued a courtesy notice, and after several failed attempts to discuss the issue with Huy Fong Foods, it sent an official notice of violation. Ultimately it filed this lawsuit  asking for the factory to be shut down until a solution is proposed and implemented.

Representatives from Huy Fong Foods have reportedly warned that the price of the popular hot sauce could increase as a result, but that seems trivial in light of the citizens of Irwindale  apparently having to breathe noxious fumes akin to pepper spray.

The Missouri Supreme Court, sitting en banc, issued a decision yesterday that, on its face, seems like a defeat for proponents of same-sex marriage in that state. In Glossip v. Missouri Department of Transportation and Highway Patrol Employees’ Retirement System, the state’s highest court upheld a state statute that requires a person be married to a highway patrol employee in order to receive benefits after the employee’s death. Although the Missouri constitution prohibits recognition of same-sex marriages, the plaintiff did not challenge that provision (so the court did not rule on that).

The facts of the case are fairly straightforward. Dennis Engelhard and Kelly Glossip, both men, were in a domestic partnership and “held [themselves] out to [their] families and [their] community as a couple in a committed, marital relationship.” Engelhard was a state highway patrolman and was killed in the line of duty. Glossip applied for survivor benefits, and his application was denied because the relevant state law allows benefits only for a surviving “spouse.” After his application was rejected, Glossip filed this lawsuit challenging the state statute restricting survivor benefits based on marital status, as well as the statute defining marriage as between one man and one woman. Importantly, Glossip did not challenge the state’s constitutional provision prohibiting recognition of same-sex marriages.

As I’ve been perusing the news, blogs, and social networks discussing various aspects of the government crisis in which we are currently mired, I have noticed that many people use “shutdown” and “shut down” interchangeably (or use one variation exclusively—to their detriment). I thought I would elucidate readers.

“Shutdown” is generally a noun.

• “The government shutdown affects us in many ways.”

In a recent filing, EveryMD LLC—perhaps best known for its (in)famous lawsuit against Rick Santorum, Mitt Romney, Newt Gingrich, and approximately four million Facebook business account holders—is suing Facebook for allegedly infringing on its patent on its system for online communication that underlies its model for allowing patients to email doctors directly. According to the complaint, the patent at issue is U.S. Patent No. 8,499,047, entitled “Method, apparatus and business system for online communication with online and offline recipients.”

According to the EveryMD.com website:

EveryMD’s Doctor E-Mailer service is a unique, free, patent-pending system that allows your office to receive online prescription refill requests and requests for scheduling appointments from patients on your office’s existing fax machine.

Asiana Airlines announced today that it plans to sue a San Francisco television station for broadcasting incorrect and racially insensitive names of the pilots involved in the airplane crash earlier this month.

On Friday, KTVU-TV reported that the names of the pilots of the crash had been released, but the names read (and displayed) were bogus names that were akin to the names one might make up for a prank call.

According to the KTVU-TV report, the pilots were:

• Captain Sum Ting Wong
• Wi Tu Lo
• Ho Lee Fuk
• Bang Ding Ow

Surely upon reading these names aloud (let alone reading them critically), the anchor might have known something was amiss.

But does Asiana have the grounds to pursue a lawsuit?

Today, the U.S. Supreme Court handed down two highly anticipated decisions affecting the rights of gay men and lesbians to marry. Here are some resources to help you understand the two cases, Hollingsworth v. Perry (Prop 8) and United States v. Windsor (DOMA).

Hollingsworth v. Perry

The U.S. Supreme Court (5-4, authored by Chief Justice Roberts) held that the proponents of California’s Proposition 8 lacked judicial standing to defend the law, and therefore it vacated the Ninth Circuit’s ruling and remanded the case. The practical effect is that Judge Vaughn Walker’s decision at the district court level is reinstated, and that strikes down Proposition 8 as unconstitutional.

The media has been closely following the criminal trial of George Zimmerman, the racially charged trial in which Zimmerman is accused of murdering teenager Trayvon Martin. Just this week, a jury of six was chosen.

For most people, when we think of juries, we think of them as being comprised of twelve people. Indeed, for over 600 years, juries in the English and American legal systems have been 12 people (men, traditionally—which highlights another interesting aspect of this case with an all-female jury panel).

In 1898, the U.S. Supreme Court ruled in Thompson v. Utah that the Constitution requires a jury to be comprised of exactly twelve persons. However, in 1970, the Court revisited that holding. After assessing the legislative history of the Sixth Amendment and the purpose of the jury, the Court in Williams v. Florida held that Florida’s law permitting a six-person jury in a criminal trial does not violate the Sixth Amendment’s guarantee of the right to a trial by jury. The Williams Court reasoned as follows:

American Express Co. v. Italian Colors Restaurant, United States Supreme Court (6/20/13)
Antitrust & Trade Regulation, Arbitration & Mediation, Class Action

An agreement between American Express and merchants who accept American Express cards, requires that all of their disputes be resolved by arbitration and provides that there “shall be no right or authority for any Claims to be arbitrated on a class action basis.” The merchants filed a class action, claiming that American Express violated section 1 of the Sherman Act and seeking treble damages under section 4 of the Clayton Act. The district court dismissed. The Second Circuit reversed, holding that the class action waiver was unenforceable and that arbitration could not proceed because of prohibitive costs. The Circuit upheld its reversal on remand in light of a Supreme Court holding that a party may not be compelled to submit to class arbitration absent an agreement to do so.

The Supreme Court reversed. The FAA reflects an overarching principle that arbitration is a matter of contract and does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery. Courts must rigorously enforce arbitration agreements even for claims alleging violation of a federal statute, unless the FAA mandate has been overridden by a contrary congressional command. No contrary congressional command requires rejection of this waiver. Federal antitrust laws do not guarantee an affordable procedural path to the vindication of every claim or indicate an intention to preclude waiver of class-action procedures. The fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.

Read more: Arbitration Backed as Court Rules for American Express