Commercial Litigation Update

Once again, the U.S. Supreme Court handed down three decisions on a Thursday, each of them substantively important to the individuals involved, but all of them essentially involving the Supreme Court’s instructing lower courts on how to go about interpreting both statutory mandates and caselaw precedents. Two of the three decisions are unanimous. The third, involving capital punishment, predictably shows a 6–3 split between Court conservatives and liberals.

Of the three cases decided today, the Court’s unanimous decision in Cantero v. Bank of America is likely the one of greatest import to our audience of litigators because it involves the issue of determining federal preemption. Writing for the entire Court, Justice Kavanaugh begins by noting that banks with federal charters, i.e., “national banks,” are primarily subject to federal oversight and regulation, while state-chartered banks are subject to further state oversight and regulation. A federal law, the National Bank Act, especially grants national banks the power to administer home mortgage loans. While the home mortgage loans made by national banks often include escrow accounts that are extensively regulated under the federal Real Estate Settlement Procedures Act of 1974, there is no requirement for national banks to pay interest on escrow balances. New York State law, however, mandates that a lending bank “shall” pay borrowers such interest. In the instant case, several mortgage borrowers brought class action suits against a national bank, demanding payment of interest on their escrow accounts. The U.S. Court of Appeals for the Second Circuit held that because the New York law “would exert control over” national banks’ power “to create and fund escrow accounts,” the state’s law was preempted by the National Bank Act.

The U.S. Supreme Court decided three cases today, one of them on the main sequence of the practices of most of the readers of this blog and the others worth knowing about, both as lawyers and as citizens.

Adding another car to the train of decisions concerning arbitration, namely, what is arbitrable and who decides it, a unanimous Court, per Justice Jackson, has held in Coinbase, Inc. v. Suski, that where parties have agreed to two contracts, one sending disputes concerning arbitrability to arbitration, and another, either explicitly or implicitly, sending such disputes to the courts ...

On May 16—for the second time in two weeks—the U.S. Supreme Court, this time unanimously, has taken a lenient, plaintiff-friendly view of whether a filing deadline is jurisdictional in the sense that it is governed by the occurrence of a triggering event or its discovery. In Harrow v. Department of Defense, the Court, per Justice Kagan, held that the 60-day appeal provision regarding a federal Merit Systems Protection Board (the “Board”) decision is not jurisdictional and is subject to equitable exceptions, such as waiver, forfeiture, and equitable tolling. Stuart Harrow ...

The U.S. Supreme Court decided two cases yesterday, in each of which timing played a decisive role in the outcome. These cases did not produce the unanimity that has characterized most of the Court’s decisions so far this term. However, the divisions, while reflective of ideological differences among the Justices, are expressed with intellectual honesty and recognition of consequences. One of them, a copyright case, is of particular relevance to litigators involved, not just with copyright issues, but in many areas of the law concerning how the Court will interpret and apply ...

A unanimous Supreme Court has eased the route for a plaintiff to prove a violation of Title VII of the Civil Rights Act of 1964 in Muldrow v. City of St. Louis.

Sergeant Jatonya Muldrow brought suit against the St. Louis Police Department when she was transferred from the department’s Intelligence Division to a uniformed role in one of the department’s police districts. Notwithstanding the fact that Sergeant Muldrow (whom her former supervisor addressed as “Ms.” rather than “Sergeant”) was a most dependable “workhorse” on the job, the supervisor determined that ...

The Supreme Court heard arguments this morning in the case of Joseph Fischer, one of more than 300 people convicted of corruptly obstructing an official proceeding: the congressional certification on January 6, 2021, of Joe Biden’s victory over Donald Trump.

If oral argument is any indication, there is considerable division between the jurisprudential liberals and conservatives concerning the breadth and effect of the obstruction statute. The Fischer case is important because of its potential effects on the numerous convictions entered in the District Court for D.C. and because Special Counsel Jack Smith has charged Trump with the same offense in his pending case.

Of less national significance are the two decisions issued by the Court today.

Some commentators claim there are bitter divisions among the Justices, roiling the Court and its processes. Many of the same commentators were critical of the Court’s decision holding that former President Trump was not disqualified from reelection by Section 3 of the Fourteenth Amendment, but they tended to ignore that the Court’s operative opinion was unanimous. The tenor of that unanimity will be explored as soon as April 25, when the Court hears arguments in the immunity case of Trump v. United States.

At least for today, however, peace reigns on the bench, as the Court issued unanimous opinions in each of the three cases decided.

Yonas Fikre, a U.S. citizen who had emigrated from Sudan, found himself placed on the No Fly List by the FBI and unable to return to the United States from an international trip. This action followed Fikre’s having been questioned about the mosque he attended and his refusal to become an FBI informant. Having ended up in Sweden, Fikre brought suit, alleging that the government had violated his procedural rights by failing to give him sufficient notice and the ability to gain adequate redress and had improperly considered his race, national origin, and religious beliefs in putting him ...

On Friday, March 15, a unanimous Supreme Court decided two companion cases (Lindke v. Freed and O’Connor-Ratcliff v. Garnier) that resolved a split in the Circuits concerning whether public officials can be held liable under 42 U.S.C. §1983 for blocking posts on social media sites, in these cases, Facebook.

As the Court noted in Lindke v. Freed, Section 1983—as is well known—provides a cause of action against ‘[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State’ deprives someone of a federal constitutional or statutory ...

To the surprise of no one connected with the case, or who just listened to the oral argument, the Supreme Court, in a per curiam opinion (i.e., unanimously), decided the case of Trump v. Anderson, holding that states have no power under the Constitution to enforce Section 3 of the 14th Amendment with respect to federal offices, in this case, the presidency.

Accordingly, absent congressional action—and there has been none—former President Trump may not be kept off the primary or general election ballot, not just in Colorado, but in any state or territory.

Most readers of this blog rarely, if ever, become involved in homicide cases.

Nevertheless, the Supreme Court’s essentially unanimous decision in McElrath v. Georgia should be of interest because it deals with the issue of inconsistent verdicts, something that many of us have experienced, but this time, as such verdicts might affect double jeopardy. Damian McElrath was charged with malice murder, felony murder, and aggravated assault for having killed his mother. A jury returned a split verdict against him, finding him “not guilty by reason of insanity” with respect to ...

Today might ultimately be remembered as among the most consequential days in the history of the Supreme Court and the nation. That will be determined when a decision in Trump v. Anderson is issued.

As any reader of this blog likely is aware, the issue in the Anderson case is whether the Supreme Court of Colorado correctly applied Section 3 of the 14th Amendment in disqualifying ex-President Donald Trump from the 2024 presidential primary election in that state. While I’ll refrain from much comment until we actually have a decision to discuss, I note that I, apparently like many ...