Category: 3-LawSometimeCommentary

On March 1, 2016, the Supreme Court heard oral argument in Husky International Electronics, Inc. v. Ritz. Between 2003 and 2007 Husky International Electronics sold and delivered electronic device components worth more than $160,000 to Chrysalis Manufacturing Corp. Chrysalis, then under the financial control of Daniel Ritz, failed to pay for the goods and Ritz encouraged the transfer of funds from Chrysalis to various other companies. Ritz held substantial ownership stakes in these companies, which had not given reasonably equivalent value in exchange for the Chrysalis funds. -- In May 2009, Husky sued Ritz in federal district court, seeking to hold him personally liable for Chrysalis’s debt. Ritz filed a voluntary Chapter 7 bankruptcy petition, and Husky then filed a complaint in the bankruptcy court alleging actual fraud, to preclude a discharge of Ritz’s debts. The bankruptcy court ruled that Husky had failed to prove actual fraud, however, and the district court affirmed that decision. The U.S. Court of Appeals for the Fifth Circuit likewise affirmed the lower court judgments, finding no record evidence of a false representation by the debtor, which the Fifth Circuit deemed a necessary predicate to establish actual fraud. -- The question now before the Supreme Court is whether the “actual fraud” bar to discharge under Section 523(a)(2)(A) of the Bankruptcy Code applies only when the debtor has made a false representation, or whether the bar also applies when the debtor has deliberately obtained money through a fraudulent-transfer scheme that was actually intended to cheat a creditor. -- To discuss the case, we have Zvi Rosen, who is a visiting scholar at Hofstra University Maurice A. Deane School of Law.

On February 24, 2016, the Supreme Court heard oral argument in the consolidated cases Hughes v. Talen Energy Marketing and CPV Maryland, LLC v. Talen Energy Marketing. -- In this case, the Supreme Court considers whether Maryland encroached on the Federal Energy Regulatory Commission’s (FERC) rate-setting power when directing its local electricity distribution companies, via a “Generation Order,” to enter into a fixed-rate contract with an energy provider selected through a bidding process. The U.S. Court of Appeals for the Fourth Circuit held that Maryland’s Generation Order was preempted by federal law because it effectively set the rates the producer would receive for sales resulting from a regional auction overseen by FERC, and in effect also extended a three-year fixed price period set under the Federal Power Act to twenty years. -- The questions before the Supreme Court are: (1) Whether, when a seller offers to build generation and sell wholesale power on a fixed-rate contract basis, the Federal Power Act field-preempts a state order directing retail utilities to enter into the contract; and (2) whether FERC’s acceptance of an annual regional capacity auction preempts states from requiring retail utilities to contract at fixed rates with sellers who are willing to commit to sell into the auction on a long-term basis. -- To discuss the case, we have James Coleman, who is Assistant Professor at University of Calgary Law School.

It was a big week at SCOTUS, as a newly-balanced Court turned to Whole Woman’s Health v. Hellerstedt, its first abortion case in nine years. We discuss the case with legal scholar Pamela Karlan and listen to some highlights from oral arguments.

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And by Amazon. Detective Harry Bosch is back on the new season of Amazon’s Original Series Bosch, based on the best selling novels by Michael Connelly. Stream the new season on March 11th on Amazon Prime Video.

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On March 30, 2016, the Supreme Court heard oral argument in Welch v. United States. Police entered Gregory Welch’s apartment believing that a robbery suspect was on the premises, and after he consented to search they located a gun and ammunition that Welch later identified as his own. He was subsequently arrested and pleaded guilty to being a felon in possession of a firearm. Because Welch had three prior felony convictions, the district court determined that the Armed Career Criminal Act (ACCA) required that he be sentenced to a minimum of 15 years in prison. Welch appealed, arguing that his conviction for robbery in Florida state court did not qualify as a predicate offense for the purposes of ACCA because, at the time he was convicted, Florida state law allowed for a robbery conviction with a lower level of force than the federal law required to qualify as a predicate offense. The U.S. Court of Appeals for the Eleventh Circuit, however, affirmed the district court’s judgment, concluding that the minimum elements for conviction under the Florida law established a “serious risk of physical injury to another” and, therefore, qualified it as a predicate offense for purposes of ACCA. Welch’s subsequent attempt to obtain habeas relief from the district court was denied, and the Eleventh Circuit rejected his appeal, but the Supreme Court granted certiorari. -- The two questions before the Supreme Court are: (1) Whether Johnson v. United States, 135 S. Ct. 2551 (2015)—which held that the residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e)(2)(B)(ii), is unconstitutionally vague—announced a new “substantive” rule of constitutional law that is retroactively applicable in an initial motion to vacate a federal prisoner’s ACCA-enhanced sentence under 28 U.S.C. 2255(a); and (2) Whether petitioner’s conviction for robbery under Florida state law qualifies as a violent felony that supports a sentence enhancement under the ACCA. -- To discuss the case, we have Richard E. Myers II, who is the Henry Brandis Distinguished Professor of Law, University of North Carolina School of Law.

On January 25, 2016, the Supreme Court decided Amgen Inc v. Harris without oral argument. Former employees of an Amgen subsidiary had participated in a benefit plan that offered ownership of Amgen stock. When the value of Amgen stock fell in 2007, stockholders filed a class action against plan fiduciaries alleging a breach of fiduciary duties, including the duty of prudence, under the Employee Retirement Income Security Act of 1974. Although the U.S. Court of Appeals for the Ninth Circuit initially reversed a district court decision dismissing the class action complaint, the U.S. Supreme Court then vacated the Ninth Circuit’s judgment and remanded the case in light of the Supreme Court’s then-recent decision Fifth Third Bancorp v. Dudenhoeffer, which set forth the standards for stating a claim for breach of the duty of prudence against fiduciaries who manage employee stock ownership plans. -- On remand, the Ninth Circuit reiterated its conclusion that the plaintiffs’ complaint stated a claim for breach of fiduciary duty, and the Supreme Court again granted certiorari. In a per curiam opinion the Court reversed the judgment of the Ninth Circuit by a vote of 9-0, holding that the Circuit had failed to properly evaluate the complaint. In its current form, the Supreme Court concluded, the complaint failed to state a claim for breach of the duty of prudence. In remanding the case, however, the Court indicated that the district court could decide in the first instance whether the stockholders might amend their complaint in order to adequately plead a claim for breach of the duty of prudence. -- To discuss the case, we have George T. Conway III, who is Partner, Litigation at Wachtell, Lipton, Rosen & Katz.

On January 25, 2016, the Supreme Court decided Montgomery v. Louisiana. Petitioner Montgomery was 17 years old in 1963, when he killed a deputy sheriff in Louisiana and received a mandatory sentence of life without parole. In 2012 the U.S. Supreme Court ruled in Miller v. Alabama that mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.” Montgomery sought state collateral relief, arguing that Miller rendered his mandatory life-without-parole sentence illegal. The trial court denied his motion, and his application for a supervisory writ was denied by the Louisiana Supreme Court, which had previously held that Miller does not have retroactive effect in cases on state collateral review. -- Montgomery’s case presents the U.S. Supreme Court with two questions: (1) Whether the Court has jurisdiction to decide whether the Supreme Court of Louisiana properly refused to give retroactive effect to Miller; and (2) Whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison. -- By a vote of 6-3 the Supreme Court answered both questions in the affirmative, reversing the judgment of the Louisiana Supreme Court and remanding the case. Justice Kennedy delivered the opinion of the Court, in which the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Scalia filed a dissenting opinion, in which Justices Thomas and Alito joined. Justice Thomas also filed a dissenting opinion. -- To discuss the case, we have Zachary Bolitho, who is Assistant Professor at Campbell University School of Law.

A week after the death of Justice Antonin Scalia, his former clerk Rachel Barkow shares fond memories of a mentor with whom she didn’t always agree politically. And legal scholar Akhil Reed Amar explains why Scalia didn’t always remain true to his originalist principles.

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On January 25, 2016, the Supreme Court decided Musacchio v. United States. Petitioner Musacchio was convicted in a jury trial on two counts of violating the Computer Fraud and Abuse Act. At trial, the district court had incorrectly instructed the jury that the government had to prove more stringent elements than the statute actually required, but the government had failed to object. On appeal, Musacchio argued that the government had failed to present evidence sufficient to sustain a conviction under this more stringent standard. He also argued that one of the counts on which he was convicted had been barred by a statute of limitations, but had not raised this objection at trial. The U.S. Court of Appeals for the Fifth Circuit rejected both challenges and affirmed Musacchio’s conviction. -- The question before the Supreme Court was twofold: (1) how should federal courts assess a challenge to the sufficiency of the evidence in a criminal case when a jury instruction adds an element to the charged crime and the Government fails to object; and (2) can a defendant successfully raise the general federal criminal statute of limitations for the first time on appeal? -- By a vote of 9-0, the Court affirmed the judgment of the Fifth Circuit, holding that (1) the challenge to sufficiency of the evidence should be assessed against the elements of the charged crime, rather than the elements set forth in the erroneous jury instruction; and (2) the statute of limitations bar could not be raised for the first time on appeal. Justice Thomas delivered the opinion for a unanimous Court. -- To discuss the case, we have Mark H. Bonner, who is Associate Professor at Ave Maria School of Law.

On January 25, 2016, the Supreme Court decided several energy cases consolidated under the heading Federal Energy Regulatory Commission v. Electric Power Supply Association. These cases concern a practice called “demand re­sponse,” in which operators of wholesale markets pay electricity consumers for commitments not to use power at certain times. In the regulation challenged here, the Federal Energy Regulatory Commission (FERC) required those market operators, in specified circumstances, to compensate the two services equivalently—that is, to pay the same price to demand response providers for conserving energy as to generators for making more of it. The U.S. Court of Appeals for the D.C. Circuit vacated this regulation, however, holding it beyond the FERC’s authority under the Federal Power Act as well as arbitrary and capricious, for failure to justify adequately a potential windfall to demand response providers. -- The Supreme Court granted certiorari on two questions: (1) Does the Federal Power Act permit FERC to regulate these demand response transactions at all, or does any such rule impinge on the States’ residual authority? (2) Even if FERC has the requisite statutory power, did FERC fail to justify adequately why demand response providers and electricity producers should receive the same compensation? -- By a vote of 6-2, the Court reversed the judgment of the D.C. Circuit and remanded the case, holding that (1) FERC did possess adequate regulatory authority under the Federal Power Act; and (2) FERC’s decision to compensate demand response providers at locational marginal price was not arbitrary and capricious. Justice Kagan delivered the opinion of the Court, in which the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined. Justice Scalia filed a dissenting opinion in which Justice Thomas joined. Justice Alito was recused from this case. -- To discuss the case, we have James Coleman, who is assistant professor at the University of Calgary, Faculty of Law and Haskayne School of Business.

On January 20, 2016, the Supreme Court heard oral arguments in Sturgeon v. Frost. Sturgeon challenged a National Park Service (NPS) ban on the operation of hovercraft on the National River, part of which falls within the Yukon-Charley River National Preserve. The State of Alaska then intervened, challenging NPS’s authority to require its researchers to obtain a permit before engaging in studies of chum and sockeye salmon on the Alagnak River, part of which falls within the boundaries of the Katmai National Park and Preserve. Sturgeon and Alaska contended that the Alaska National Interest Lands Conservation Act (ANILCA) precludes NPS from regulating activities on state-owned lands and navigable waters that fall within the boundaries of National Park System units in Alaska. The district court ruled in favor of the federal government, and the Ninth Circuit affirmed that judgment as to Sturgeon but ordered that Alaska’s case be dismissed for lack of standing. -- The question before the Court is whether ANILCA prohibits the National Park Service from exercising regulatory control over state, native corporation, and private Alaska land physically located within the boundaries of the National Park System. -- To discuss the case, we have Gale Norton, who served as the 48th U.S. Secretary of the Interior.