A new re-registration on arbitration clauses


The Relist Watch column examines certified petitions that the Supreme Court has “re-listed” for its next conference. A brief explanation of relists is available here.

The Supreme Court continued its rapid turnaround in reinstated cases, granting review in four of those cases on Friday.

The court had a total of four motions in criminal cases asking whether doctors convicted of illegally dispensing prescription drugs should be allowed to ask a jury to consider whether they subjectively believed the prescriptions were. medically appropriate. As I somehow predicted last week when the last of those four motions was re-entered, the court ultimately granted review of two of them to plead together: Ruan v. United States, 20-1410, and Kahn v. United States, 21-5261. (The other two cases considered by the tribunal will now be held pending the outcome of the Ruan and Kahn then disposed of as appropriate.)

I was also right that Egbert v. Ball, 21-147, was “total cert bait”. The case concerns whether actions under Bivens v. Six named agents unknown to Federal Bureau of Narcotics are available for allegations that the Border Patrol violated an innkeeper’s Fourth Amendment rights for abusing him during a search and retaliating for his complaints by encouraging the Internal Revenue Service to investigate him . More surprisingly, the court granted cert Health Insurance Plan for Employees of Marietta Memorial Hospital c. DaVita, Inc., 20-1641, alleging that the United States’ 6th and 9th Circuit Courts of Appeals are divided over how to apply the anti-discrimination provisions of the Medicare Secondary Payer Act. All of the other relists from last week are back for another trip to the tribunal conference this Friday.

We have a new case releasing this week: Morgan v. Sundance, Inc., 21-328. In the years 2011 AT&T Mobility LLC v. Conception, the Supreme Court ruled that the federal arbitration law obliges courts to “put arbitration agreements on an equal footing with other contracts.” In Design, the claim was that California state law treated arbitration contracts less favorably than other contracts. On the other hand in Morgan, the plaintiff / petitioner claims that the United States Court of Appeals for the 8th Circuit accorded unduly favored treatment to arbitration clauses by making it more difficult to prove that a defendant has waived an arbitration clause than ‘it is not necessary to prove the waiver of other clauses. Although it has a name that evokes the idols of the late 1960s and incredibly exclusive festival tickets, the respondent Sundance, Inc. operates Taco Bell franchises. Robyn Morgan, who worked at a Sundance-owned Taco Bell franchise, filed a putative class action lawsuit in federal court under the Fair Labor Standards Act. Sundance requested the dismissal and then filed a response to its complaint, making various arguments but not insisting on arbitration. After mediation failed to reach a settlement, Sundance sought individual arbitration of Morgan’s claims. The district court ruled that Sundance waived its right to arbitration by not doing so sooner. But on appeal, the 8th Circuit overturned due to “the lack of evidence of prejudice to Morgan”. In his petition, Morgan argues that lower courts are divided on whether prejudice is a requirement to prove that a party has waived an argument, and that, in any event, prejudice is not. is not a required factor for waiver of other contractual clauses.

This is all new reissues. But I have an update on one of the relists from last week, Volkswagen Group v. Hillsborough County Environmental Protection Commission, 20-994. This case concerns the question of whether the Clean Air Act prevents state and local governments from regulating national aftermarket automaker updates to vehicle emissions systems. This Friday, the court will examine for the first time another petition filed by VW raising the same issue, Volkswagen Aktiengesellschaft v. Ohio, ex rel. Yost, 21-312. (“Aktiengesellschaft” is the German word for “eat up the sadness of your enemies.”) As last Friday’s grant in the prescribing physician case shows, the court sometimes waits for all cases raising an issue to arrive at the conference before to act. So we could soon act one way or the other.

It’s all for this week. We will be back next week. Be careful!

New list

Morgan v. Sundance, Inc., 21-328
Problem: Does the specific arbitration requirement that the defender of a contractual waiver must prove the damage violate the Supreme Court instruction in AT&T Mobility LLC v. Conception that lower courts must “put arbitration agreements on an equal footing with other contracts”.
(relaunched after the November 5 conference)

Return Relists

Arlene’s Flowers Inc. v. Washington, 19-333
Problems: (1) if a state violates a floral designer’s First Amendment rights to free exercise and freedom of expression by requiring them to participate and create custom flower art celebrating same-sex marriages or by acting on the basis of hostility towards one’s religious beliefs; and (2) whether the prohibition of the free practice clause on religious hostility applies to the executive branch.
(certiorari petition recirculated after the conferences of Jan 10, 2020, Jan 17, 2020, Jan 24, 2020, February 21, 2020 and June 24, 2021; rehearing of the petition recirculated after the conferences of Sep 27, 2021, Oct. 8, Oct. 15, Oct. 29 and Nov. 5 (conferences)

Naum c. United States, 20-1480
Problem: if the elements of 21 USC § 841 (a) (l) as defined in United States v. Moore, requiring the government to prove the illegal distribution of a controlled substance “outside the usual course of professional practice” and “for purposes other than legitimate medical” can be applied in the disjunctive, allowing the government to prove only that a prescription was prescribed “outside the ordinary course of professional practice” or “outside the limits of professional practice” only for violation of a professional standard without regard to the medical legitimacy of the drug.
(relisted after the September 27, October 8, October 15 and October 29 conferences; now held for Ruan and Khan)

Couch c. United States, 20-7934
Problems: (1) Did the trial court err in equating a valid defense of a crime with an element of that crime in its instructions to the jury regarding a doctor who allegedly violated 21 USC § 841 (a); and (2) whether the trial court erred in failing to explain or adequately define “good faith” in its instructions to the jury regarding a Controlled Substances Act matter involving a physician. .
(relisted after the September 27, October 8, October 15 and October 29 conferences; now held for Ruan and Khan)

Volkswagen Group v. Hillsborough County Environmental Protection Commission, 20-994
Problem: If the Air Quality Act prevents state and local governments from regulating national aftermarket updates from manufacturers of vehicle emissions systems. CVSG: 09/27/2021
(relaunched after the conference on October 29)

City of New York v. Frost, 20-1788
Problem: if, where a article 1983 applicant alleges that his pre-trial detention was influenced by fabricated evidence and the existence of probable cause independent of the disputed evidence defeats his Fourth Amendment claim, he can still pursue a procedural claim due process based on the alleged use of the same disputed evidence to obtain the same pre-trial detention.
(relisted after the October 29 conference; now held)

Knight v. Pennsylvania, 20-7805
Problem: If a state can require an accused to have an IQ score of 75 or less that has been “documented before the age of 18” for his intellectual disability claim to be considered a basis for disqualifying him the death penalty, when this requirement is contrary to clinical standards for diagnosis and contrary to multiple decisions where the Supreme Court has granted compensation to applicants who did not have such documentation.
(relaunched after the conferences of 29 Oct. and 5 Nov.)

Holcombe v. Florida, 21-53
Problems: 1 (2) whether the “presumed harm” conflict of interest standard applies when the prosecutor (rather than defense counsel) advises the trial judge at the start of a trial of the conflict of interest defense counsel – a conflict that is described by the prosecutor as “not waiverable” – and the judge then fails to investigate the nature and extent of the conflict.
(relaunched after the conferences of 29 Oct. and 5 Nov.)

Trustees of the New Life in Christ Church v. City of Fredericksburg, 21-164
Problems: (1) If civil authorities violate the First Amendment when they engage in their own interpretation of church doctrine to overrule a church’s determination that a particular official is a minister and, if that is the case, if a summary inversion is appropriate; (2) whether, in the alternative, the Supreme Court should grant, quash and remand in light of Fulton v. City of philadelphia, because Virginia enacted a “system of individual exemptions” to its property tax law, and the city “” cannot refuse to extend this [exemption] system to [the Church] for no compelling reason.
(rescheduled before the October 8 and October 15 conferences; relisted after the October 29 and November 5 conferences)

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