Articles Posted in Legal News

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

Five opinions came down today from the United States Supreme Court. Read the summaries below and read the full text of the opinions at Justia’s U.S. Supreme Court Center.

Alleyne v. United States, United States Supreme Court (6/17/13)
Civil Rights, Constitutional Law, Criminal Law

Alleyne was convicted using or carrying a firearm in relation to a crime of violence, 18 U.S.C. 924(c)(1)(A), which carries a five-year mandatory minimum sentence. The sentences increases to a seven-year minimum if the firearm is brandished, 924(c)(1)(A)(ii), and to a 10-year minimum if it is discharged, 924(c)(1)(A)(iii). The jury form indicated that Alleyne had “[u]sed or carried a firearm during and in relation to a crime of violence,” but not that the firearm was “[b]randished.” Alleyne objected to a sentencing report recommendation of a seven-year term, arguing that the jury did not find brandishing beyond a reasonable doubt and that raising his mandatory minimum sentence based on a judge’s finding of brandishing would violate his Sixth Amendment right to a jury trial. The district court overruled the objection. The Fourth Circuit affirmed.

The Supreme Court vacated and remanded, overruling Harris v. United States, 536 U.S. 545 and applying Apprendi v. New Jersey, 530 U.S. 466. Mandatory minimum sentences increase the penalty for a crime and any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. Defining facts that increase a mandatory minimum as part of the substantive offense enables a defendant to predict the applicable penalty from the face of the indictment and preserves the jury’s role as intermediary between the state and criminal defendants. Because the fact of brandishing aggravates the prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury, regardless of what sentence the defendant might have received had a different range been applicable. The Court noted that its ruling does not mean that any fact that influences judicial discretion must be found by a jury.

Read more: Supreme Court says jury should have final say on facts that trigger mandatory minimums

A lawsuit filed in the U.S. District Court for the District of Wyoming alleged that the plane of Amelia Earhart had been located. Plaintiff Timothy Mellon stated in his Complaint that during its NIKU VI expedition around Nikumaroro from May 18, 2010, through June 14, 2010, Defendant The International Group for Historic Aircraft Recovery (TIGHAR) had obtained “footage of the wreckage of the Lockheed Electra flown by Amelia Earhart when she disappeared in 1937.”

Back in January, key provisions of FISA – the Foreign Intelligence Surveillance Act – were renewed by Congress.  I wrote about the troubling situation of access to FISA Opinions, which is basically non-existent. Up until January, only one opinion had been released by the FISA Court, and only two opinions released by the FISA Court of Review. The FISA Rules of Court allow on the federal government or the FISA Courts themselves to release opinions without a court order.

Well, the Guardian UK got ahold of a recent opinion that compels Verizon to produce the telephony data for millions of domestic customers for the Government. This opinion, which you can read on the Guardian’s site, is marked as top secret and almost certainly was not released by the FISA Court itself. The Guardian only says that it “obtained” the opinion.

Others have tried to get the opinions, using a procedure (detailed in the last blog post) established to declassify opinions that contained “important rulings of law.” A 2012 FOIA Request, however, yielded “no records.”

President Obama issued an executive order last month calling on the federal government to open access to public documents by making them “open and machine readable.” He called on government information to be “managed as an asset throughout its life cycle to promote interoperability and openness, and, wherever possible and legally permissible, to ensure that data are released to the public in ways that make the data easy to find, accessible, and usable.”

Well, I can think of a huge dataset waiting to be opened: case law from the US Federal District and Appellate Courts. Right now, some of the case law is published in slip format (the unofficial decision) in FDSys. It is machine readable, and contains metadata – both good things, consistent with this directive. However, it’s not official. If we are to take the White House mandate seriously, the official, published case law (issued by a private publisher), should be hosted in FDSys. This would make it “usable” under the Order.

In support of this move, President Obama references the release of government GPS and weather data, which encouraged entrepreneurs to create applications and tools of value to the American people.

Two opinions came down today from the United States Supreme Court. Read the summaries below and read the full text of the opinions at Justia’s U.S. Supreme Court Center.

McQuiggin v. Perkins, United States Supreme Court (5/28/13)
Civil Rights, Constitutional Law, Criminal Law

This year has seen some definitive advances in how certain states address the issue of insurance discrimination against transgender people. California, Colorado, Oregon, and Vermont, as well as the District of Columbia, have issued bulletins that clarify their state laws to prohibit discrimination against transgender people for health services deemed medically necessary. Some states, such as California, also outline an appeals process for individuals whose claims are denied. Here is the bulletin California recently issued:

[California law] prohibits health plans from discriminating against individuals because of the individua’s gender, including gender identity or gender expression …  If a health plan denies an individual’s request for services on the basis that the services are not medically necessary or that the services do not meet the health plan’s utilization management criteria, the health plan’s decision is subject to review through the Department’s Independent Medical Review (IMR) process …  The Department directs health plans to revise all current health plan documents to remove benefit and coverage exclusions and limitations related to gender transition services.

At present, the majority of private insurance plans include coverage exclusions specifically aimed at denying transgender people the ability to access treatment or procedures associated with transitioning, often referred to as sexual reassignment. In addition, insurance plans often exclude coverage of health care services for transgender individuals that would otherwise have been covered, had the person in question not been transgender. These services can include behavioral health, medical, and surgical procedures. Often, the exclusion is justified on the basis that the treatment is not medically necessary, but rather a cosmetic procedure, and the transgender person’s claim is consequently denied when it may otherwise have been covered for treatment not related to gender identity.

Coverage may also be denied in instances where a person’s gender marker on an insurance card doesn’t seem to match up with the treatment being sought. For example, an insurance plan may choose not to cover a yearly gynecological exam for someone who has legally changed their gender to male. The same goes for gender-specific preventative or treatment in instances of breast, ovarian, cervical, or prostate cancer. 

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Bowman v. Monsanto Co.
Agriculture Law, Patents

Bailey v. Callaghan, US 6th Cir. (5/9/13)
Communications Law, Constitutional Law, Education Law, Labor & Employment Law

Michigan’s 2012 Public Act 53 provides: “A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization,” so that unions must collect their own membership dues from public-school employees, rather than have the schools collect those dues via payroll deductions. The Act does not bar public employers other than schools from collecting membership dues for unions who represent their employees.  Unions and union members challenged the Act under the First Amendment and the Equal Protection Clause. The district court entered a preliminary injunction barring enforcement.  The Sixth Circuit reversed, quoting the Supreme Court: “The First Amendment prohibits government from ‘abridging the freedom of speech’; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.” The court further reasoned that there is a legitimate interest in support of the Act’s classification; the legislature could have concluded that it is more important for the public schools to conserve their limited resources for their core mission than it is for other state and local employers.

Read More: Federal appeals court: Michigan can ban schools from collecting union dues

Goldstein v. City of Long Beach, US 9th Cir. (5/8/13)
Civil Rights, Constitutional  Law, Criminal Law, Government & Administrative Law

Plaintiff spent 24 years in prison after being convicted for murder based largely upon the perjured testimony of an unreliable jailhouse informant. Plaintiff filed this action under 42 U.S.C. 1983, claiming that the District Attorney’s Office failed to create any system for the Deputy District Attorneys handling criminal cases to access information pertaining to the benefits provided to jailhouse informants and other impeachment information, and failed to train Deputy District Attorneys to disseminate this information. At issue on appeal was whether a district attorney acted as a local or a state official when establishing policy and training related to the use of jailhouse informants. The court concluded that the policies challenged by plaintiff were distinct from the acts the district attorney undertook on behalf of the state. Even taking into account the control and supervisory powers of the Attorney General, the District Attorney represented the county when establishing policy and training related to the use of jailhouse informants. Therefore, a cause of action could lie against the county under 42 U.S.C. 1983. Accordingly, the court reversed the district court’s grant of summary judgment on the pleadings.

Read More: 9th Circuit allows wrongly convicted man to sue L.A. County

Gartner v. Iowa Dep’t of Pub. Health, Iowa Supreme Court (5/3/13)
Civil Rights, Constitutional Law, Family Law

Melissa and Heather Gartner were a married lesbian couple. Heather conceived a child using an anonymous sperm donor. The child was born during the spouses’ marriage. The Gartners requested a birth certificate recognizing both Heather and Melissa as the child’s parents. The Department of Public Health refused to place the name of the nonbirthing spouse in a lesbian marriage on the birth certificate without the spouse first adopting the child. The district court ordered the Department to issue the Gartners a birth certificate listing both spouses as parents but did not require the Department to extend the same practice to other married lesbian couples. The Supreme Court affirmed as modified, holding (1) Iowa Code 144.13(2), Iowa’s presumption of parentage statute, violates the equal protection clause of the Iowa Constitution because it allows for only “the name of the husband” to appear on the birth certificate; and (2) accordingly, the Department must presumptively list on a child’s birth certificate the nonbirthing spouse in a lesbian marriage when the child was born to one of the spouses during their marriage.

Read More: Iowa Supreme Court ruling expands birth-certificate rights for lesbian couples

In light of the Supreme Court’s decision last week to hear two cases regarding same sex marriage, we’ve collected some recent articles on the topic written by our Verdict writers. Check back with Verdict to see more on the issue throughout the 2012 – 2013 court term.

• The California Supreme Court Rules that Prop. 8’s Proponents Have Standing to Defend the Initiative: What Does That Mean in the Ninth Circuit and U.S. Supreme Court? (11/28/11), by Vikram David Amar and Alan E. Brownstein
• The Beginning of the End of the Anti-Same-Sex-Marriage Movement (2/7/12), by Joanna L. Grossman