2011 Term
2012 OFII General Counsel Conference
Washington, D.C.
Mayo Collaborative Services v. Prometheus
Laboratories, Inc.
• Issue: Whether medical tests that rely on correlations
between drug dosages and treatment are eligible for patent
protection.
• Holding: To transform an unpatentable law of nature into a
patent-eligible application of that law, a patent must do more
than simply state the law of nature while adding the words
“apply it.” The patent must describe a particular, inventive
application of the law of nature.
2012 OFII General Counsel Conference
Washington, D.C.
Southern Union Co. v. United States
• Issue: Whether, upon a jury’s finding of liability for improper
chemical storage for at least one day, the judge could impose
the statutory penalty (fine) based upon 762 days of violations
• Holding: Apprendi’s rule that the Sixth Amendment right to a
jury trial requires that the jury, rather than the judge, find any
facts that increase a defendant’s maximum potential sentence
also applies to criminal fines
2012 OFII General Counsel Conference
Washington, D.C.
Credit Suisse Securities v. Simmonds
• Issue: Whether the two-year time limit for bringing an
action under Section 16(b) of the Securities Exchange
Act of 1934, 15 U.S.C. § 78p(b), is subject to tolling
• Holding: Normal equitable tolling rules apply to statute of
limitations for section 16(b) actions
2012 OFII General Counsel Conference
Washington, D.C.
Mohamad v. Palestinian Authority
• Issue: Whether the Torture Victim Protection Act
(“TVPA”) applies to organizations or only to natural
persons.
• Facts: U.S. citizen died in Palestinian territory after
being allegedly tortured by members of the PLO.
• Holding: The term “individual” in the TVPA
encompasses only natural persons and therefore does
not impose liability on organizations.
2012 OFII General Counsel Conference
Washington, D.C.
Kiobel v. Royal Dutch Petroleum
Issues:
1) Whether corporate civil tort liability under the Alien Tort
Statute (“ATS”) is a merits question or an issue of subject
matter jurisdiction;
2) Whether corporations may be sued in under the ATS;
3) Whether, and under what circumstances, courts should
recognize ATS claims for violations of the law of nations
occurring within the territory of a sovereign other than the
United States.
Facts: Kiobel alleges that the Nigerian government, aided and
abetted by Shell, engaged in torture and other human rights
abuses.
2012 OFII General Counsel Conference
Washington, D.C.
The Alien Tort Statute
"The district courts shall have original jurisdiction of
any civil action by an alien for a tort only, committed
in violation of the law of nations or a treaty of the
United States."
28 U.S.C. § 1350
2012 OFII General Counsel Conference
Washington, D.C.
Violations of the Law of Nations
1.
Offenses against ambassadors
2.
Violations of safe conduct
3.
Individual actions relating to piracy
2012 OFII General Counsel Conference
Washington, D.C.
A New Beginning for ATS: Filartiga v. Pena-Irala
"[O]fficial torture is now prohibited by the law of nations."
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
2012 OFII General Counsel Conference
Washington, D.C.
A New Beginning for ATS: Filartiga v. Pena-Irala
ATS provides jurisdiction over:
1.
Tort actions,
2.
Brought by aliens (only),
3.
For violations of the law of nations (customary
international law).
2012 OFII General Counsel Conference
Washington, D.C.
Modern ATS: Against Corporations
2012 OFII General Counsel Conference
Washington, D.C.
11
Supreme Court: Sosa v. Alvarez-Machain (2004)
• DEA abducts Alvarez-Machain from
Mexico to stand trial in the U.S.
• Alvarez-Machain sues for arbitrary
detention under ATS.
• Arbitrary detention of less than a
day does not violate the law
of nations.
2012 OFII General Counsel Conference
Washington, D.C.
12
Supreme Court: Sosa v. Alvarez-Machain (2004)
• ATS creates no new causes of action, but is
jurisdictional only.
• Federal courts can recognize limited number of
federal common law claims based on the law of
nations.
• Should not recognize claims with less definite content
and acceptance than historical paradigm.
2012 OFII General Counsel Conference
13
Washington, D.C.
ATS Cases: By the Numbers
• 1789 – 1980: 20 reported cases
• 1980 – 2008: 185 reported cases
– 1980 – 2004: 81 reported cases
– 2004 – 2008: 104 reported cases
2012 OFII General Counsel Conference
14
Washington, D.C.
Nat’l Federation of Independent Business v. Sebelius
• Issue: Whether the Affordable Care Act’s “individual
mandate” to have health insurance or pay a penalty is
constitutional; whether the Act’s requirement that states
expand Medicaid or else lose funding is constitutional.
• Holding: The individual mandate can be upheld under
Congress’ power to levy taxes, though not under its
Commerce Clause powers.
• Holding: The Act’s Medicaid expansion is unconstitutional
because it is too coercive vis-à-vis the states; the
unconstitutionality is cured by severing that portion, leaving
the remainder of the Act standing.
2012 OFII General Counsel Conference
Washington, D.C.
Arizona v. United States
•
Issue: Whether Arizona’s 2010 immigration law is unconstitutional as
preempted by federal immigration law.
•
Holding: Certain aspects of the Arizona law (e.g. penalizing failure to
register as an alien, making it illegal for an alien to seek or engage in
work, permitting warrantless arrests) are preempted, either because
Congress has occupied the field, or because they are obstacles to
federal law.
•
Holding: The Arizona law’s “show me your papers” provision is not
preempted on its face and should not have been enjoined; the door
remains open, however, to an “as applied” challenge depending on
how the provision is interpreted and applied by the state and state
courts.
2012 OFII General Counsel Conference
Washington, D.C.
RadLAX Gateway Hotel, LLC v. Amalgamated Bank
• Issue: Whether a debtor may pursue a Chapter 11
plan that proposes to sell assets free of liens without
allowing the secured creditor to credit bid, but instead
providing it with the indubitable equivalent of its claim.
• Holding: a secured creditor must be permitted to credit
bid, where a Chapter 11 plan provides for the sale of
collateral free and clear of the lien.
2012 OFII General Counsel Conference
Washington, D.C.
2012 Term
2012 OFII General Counsel Conference
Washington, D.C.
Fisher v. University of Texas at Austin
• Issue: Whether the Court’s decisions interpreting the Equal
Protection Clause of the 14th Amendment, including Grutter v.
Bollinger, permit UT’s use of race in undergraduate admissions
decisions
• White woman applied to UT and was rejected; claims UT’s use
of race as a factor in admissions is unconstitutional
• Lower courts upheld UT’s admissions policy where race is a
factor among many in UT’s admissions decisions to achieve
student body diversity
• Case puts in question whether universities may consider race
at all in admissions decisions
2012 OFII General Counsel Conference
Washington, D.C.
Kirtsaeng v. John Wiley & Sons, Inc.
• Issue: How do two provisions of the Copyright Act [sections
602(a)(1) and 109(a)] apply to a copy that was made and
legally acquired abroad and then imported into the United
States?
– Section 602(a)(1) prohibits the importation of a work without the
authority of the copyright’s owner
– Section 109(a) allows the owner of a copy “lawfully made under this
title” to sell or otherwise dispose of the copy without the copyright
owner’s permission
• Petitioner lawfully purchased textbooks from Wiley-Asia,
imported them to U.S., and resold them on eBay
2012 OFII General Counsel Conference
Washington, D.C.
Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds
• Issues:
• Whether, in a misrepresentation case under Rule 10b-5, the district
court must require proof of materiality before certifying a class based
on the fraud-on-the-market theory;
• Whether, in such a case, the district court must allow the defendant
to present evidence rebutting the applicability of the fraud-on-themarket theory before certifying a plaintiff class based on that theory.
Comcast v. Behrend
• Issue: Whether a district court may certify a class action without
resolving “merits arguments” that bear on Rule 23’s prerequisites for
certification, including whether purportedly common issues predominate
over individual ones under Rule 23(b)(3).
2012 OFII General Counsel Conference
Washington, D.C.
The Standard Fire Insurance Co. v. Knowles
• Issue: Whether when a named plaintiff attempts to defeat a
defendant’s right of removal under the Class Action Fairness
Act of 2005 by filing with a class action complaint a
“stipulation” that attempts to limit the damages plaintiff “seeks”
for the absent putative class members to less than the $5
million threshold for federal jurisdiction, and the defendant
establishes that the actual amount in controversy, absent the
“stipulation,” exceeds $5 million, the “stipulation” is binding on
absent class members so as to destroy federal jurisdiction.
2012 OFII General Counsel Conference
Washington, D.C.
The Standard Fire Insurance Co. v. Knowles Cont’d
• Smith v. Bayer Corp. says named plaintiff cannot bind
other proposed class members until class is certified
• District court held that plaintiff’s “stipulation” to claim less
than $5 million threshold barred removal
2012 OFII General Counsel Conference
Washington, D.C.