Diary

The October Supreme Court Docket

October 5th is the first Monday in October and the start of the 2015 Supreme Court term.  There is the potential for some big cases with the two biggest so far being the legality of public worker union agency shop arrangements and who counts in the census for redistricting purposes.  This latter case could have a profound impact on the balance of power at all levels of government.  But first, we have to get through the October schedule:

(1) OBB Personenverkehr AG vs. Sachs:  In this case, Ms. Sachs purchased a Eurail ticket over the Internet from a Massachusetts vendor and sustained an injury on a train platform in Austria.  She tried to sue the Austrian owners of the railroad in US court even though the Foreign Sovereign Immunities Act affords foreign governments and their instrumentalities (the railroad) broad protection against such suits.  The lower court agreed, but the Ninth Circuit reversed deciding that the Massachusetts ticket seller was an American-based agent of the railroad.  The Ninth Circuit, the petitioners argue, ignored FSIA and applied common law principles.

(2) Hawkins vs. Community Bank of Raymore:  This case revolves around a spouse signing as the guarantor on a business loan, enforcement of the Equal Credit Opportunity Act (a law designed to eliminate sex discrimination in the loan process) and the Federal Reserve’s Rule B and whether the Fed has the authority under the ECOA to enact that rule.

(3) Ocasio vs. United States:  Ocasio was a Baltimore police officer charged under the Hobbs Act with extortion conspiracy.  Police officers in that city, in response to car accidents, were referring victims to a particular body shop for repairs which became a lucrative affair for that body shop.  For their troubles, the officers received $150 to $600 for the referral.  Ocasio refused to plea bargain and was found guilty.  However, his argument is that the there was no “conspiracy” since they were not extorting the actual accident victims.

(4) Direct TV vs. Imburgia:  As part of the contract with Direct TV, subscribers sign an agreement that any disputes are to be resolved informally and if not, then through arbitration.  Imburgia incurred fees to the early termination of a contract and refused informal and arbitration resolution.  In fact, the California court system certified it as a class action lawsuit.  Because there was a reference to state law in the contract that was governed by the Federal Arbitration Act, the lower courts ruled that state law prevailed.  Direct TV argues that federal law- which would mandate arbitration- should prevail.

(5) Kansas vs. Gleason and Kansas vs. Carr:  These cases are similar in that they involve jury instructions in the penalty phase of capital murder trials.  Basically, the Court is asked to determine the weight to which jurors are to consider aggravating and mitigating circumstances when determining the death sentence.  The Court upheld again the death penalty last term.  But where presented with the opportunity to ensure the state gets it right, they tend to side with the defendant.  My guess is that they will lay down some ground rules and remand.

(6) Montgomery vs. Louisiana:  In 2011, the Court ruled in Miller vs. Alabama that a sentence of life in prison without parole for a minor violated the 8th Amendment.  This case asks whether that ruling creates a substantive rule that upon appellate review all such sentences be reviewed and parole offered to those sentenced to life with parole if they were convicted while a juvenile.

(7) Hurst vs. Florida: This is another capital murder case that asks for clarification of a previous ruling, this one being 2002’s Ring vs. Arizona which determined that when in a capital murder case the jury is deadlocked on the sentence of death, a judge deciding the sentence was a violation of the Sixth Amendment’s right to a jury trial.  Hurst argues that Florida’s death sentencing scheme violates the Sixth Amendment and the Ring decision, but the Court rewrote the question to determine whether the 8th Amendment was also violated.  This creates an interesting scenario where the state may win and Hurst may win.  Florida could have their sentencing protocol upheld under the Sixth Amendment, but the death penalty against Hurst may be overturned on 8th Amendment grounds since there is evidence that Hurst was mentally retarded.

(8) EnerNoc vs. Electric Power Supply Association:  This case deals with energy demand response resources which operates from the opposite side of the equation- it pays energy users to decrease energy consumption.  Traditionally, the Federal Energy Regulatory Commission requires that power plants increase supply to meet demand in real time in order to stabilize the electrical grid.  However, decreasing energy consumption is considerably cheaper than increasing the supply through increased generation.  Hence, many energy producers pay consumers to decrease their consumption.  EnerNoc is a company that supplies software to gauge energy consumption so that consumers can decrease demand.  The case involves the authority of FERC to regulate in this area.

(9) Campbell-Ewald Company vs. Gomez:  This is a three-part case involving class action lawsuits, offers of relief, what happens when the federal government is involved and it all started with an unsolicited naval recruitment text message.  Gomez apparently received an unwanted recruitment text message from the Navy via Campbell-Ewald, a technology company with which the Navy had contracted.  Gomez sued under federal law for the unsolicited text message.  While the lawsuit was pending and before any court granted class certification, the company offered Gomez over $1,500 in damages and his legal bills.  The $1,500 award was three times the statutory limit had he prevailed at trial.  Gomez refused the offer and then later sued for class certification.  The trial court determined that the offer would have satisfied his claim, but that did not render the action moot as the company claimed.  They further determined that even though the class certification was sought after the denial of the offer, it related back to the original action prior to the company’s offer.  Complicating the case is the fact that the company was contracted by the US Navy.  The company has asked whether there is derivative sovereign immunity

Such a right was recognized by the United States Supreme Court in 1940.  That court determined that a private contractor working for the United States government could not be held liable for property damage.  The company is asking the court to extend the concept of sovereign immunity from lawsuits in cases not involving property damage.   They may be reluctant to extend sovereign immunity thus the company loses on this ground.  But, they may just rule that because of the timing of the class certification (after the generous settlement offer), the fact the offer was so generous, and that the Court tends to side with anything that lessens burdens on courts (which is why they often side with arbitration), they may declare the issue moot and side with the company on those grounds.  Personally, if I was offered $1,500 and my legal bills paid for an unsolicited text message, I’d take the money…