/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190101.mbx C L A S S A C T I O N R E P O R T E R Tuesday, January 1, 2019, Vol. 21, No. 1 Headlines Major Court Rulings in Class Action Lawsuits - 2018 ********* Major Court Rulings in Class Action Lawsuits - 2018 --------------------------------------------------- The Class Action Reporter is pleased to provide our subscribers the following list of court decisions in class action lawsuits that we have identified as major rulings during 2018. This list is the product of and copyrighted by Beard Group, Inc., and no reproduction or further use of this list is permitted without the prior written consent of Beard Group, Inc. CYAN, INC., ET AL. v. BEAVER COUNTY EMPLOYEES RETIREMENT FUND ET AL., CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, No. 15–1439 (U.S.) The respondents are three pension funds and an individual who purchased shares of Cyan stock in an initial public offering. After the stock declined in value, the Investors brought a damages class action against Cyan in California Superior Court. Their complaint alleges that Cyan's offering documents contained material misstatements, in violation of the 1933 Act. It does not assert any claims based on state law. Cyan moved to dismiss the Investors' suit for lack of subject matter jurisdiction. It argued that what the Supreme Court has termed SLUSA's "except clause" -- i.e., the amendment made to Section 77v(a)'s concurrent jurisdiction grant -- stripped state courts of power to adjudicate 1933 Act claims in "covered class actions." The Investors did not dispute that their suit qualifies as such an action under SLUSA's definition, see Section 77p(f)(2). But they maintained that SLUSA left intact state courts' jurisdiction over all suits -- including "covered class actions" -- alleging only 1933 Act claims. The California Superior Court agreed with the Investors and denied Cyan's motion to dismiss. The state appellate courts then denied review of that ruling. The issue before the Supreme Court is whether Securities Litigation Uniform Standards Act of 1998 (SLUSA) deprived state courts of jurisdiction over "covered class actions" asserting only 1933 Act claims. The Federal Government, as amicus curiae, raised another question: whether SLUSA enabled Cyan to remove 1933 Act class actions from state to federal court for adjudication. The Supreme Court held that SLUSA did nothing to strip state courts of their longstanding jurisdiction to adjudicate class actions alleging only 1933 Act violations. Neither did SLUSA authorize removing such suits from state to federal court. The Supreme Court explained that SLUSA's text, read most straightforwardly, leaves in place state courts' jurisdiction over 1933 Act claims, including when brought in class actions. Recall that the background rule of Section 77v(a) -- in place since the 1933 Act's passage -- gives state courts concurrent jurisdiction over all suits brought to enforce any liability or duty created by that statute. The except clause is drafted as a limitation on that rule: It ensures that in any case in which Section 77v(a) and Section 77p come into conflict, Section 77p will control. The critical question for the case is therefore whether Section 77p limits state-court jurisdiction over class actions brought under the 1933 Act. It does not. Section 77p bars certain securities class actions based on state law. And as a corollary of that prohibition, it authorizes removal of those suits so that a federal court can dismiss them. But the section says nothing, and so does nothing, to deprive state courts of jurisdiction over class actions based on federal law. That means the background rule of Section 77v(a) -- under which a state court may hear the Investors' 1933 Act suit -- continues to govern. Still more, the Supreme Court points out that SLUSA ensured that federal courts would play the principal role in adjudicating securities class actions by means of its revisions to the 1934 Act. SLUSA amended that statute in the same main way it did the 1933 Act -- by adding a state-law class-action bar. But there, the change had a double effect: Because federal courts have exclusive jurisdiction over 1934 Act claims, forcing plaintiffs to bring class actions under the 1934 statute instead of state law also forced them to file in federal court. That meant the bulk of securities class actions would proceed in federal court -- because the 1934 Act regulates all trading of securities whereas the 1933 Act addresses only securities offerings. So even, without Cyan's contrived reading of the except clause, SLUSA largely accomplished the purpose articulated in its Conference Report: moving securities class actions to federal court. Finally, the Supreme Court explains that the covered class actions described in Section 77p(b) can be removed to federal court (and, once there, will be subject to dismissal because precluded). The covered class actions described in Section 77p(b) are state-law class actions alleging securities misconduct. So those state-law suits are removable. But conversely, federal-law suits like this one -- alleging only 1933 Act claims -- are not class actions as set forth in subsection (b). So they remain subject to the 1933 Act's removal ban. Justice Kagan delivered the opinion for a unanimous Court. Attorneys for Petitioners: Boris Feldman, Esq. Ignacio E. Salceda, Esq. Aaron J. Benjamin, Esq. WILSON SONSINI GOODRICH & ROSATI PC 650 Page Mill Road Palo Alto, CA 94304 Tel: (650) 493-9300 Fax: (650) 493-6811 Email: Boris.Feldman@wsgr.com ISalceda@wsgr.com abenjamin@wsgr.com -- and -- Gideon A. Schor, Esq. WILSON SONSINI GOODRICH & ROSATI PC 1301 Avenue of the Americas 40th Floor New York, NY 10019 Tel: (212) 999-5800 Fax: (212) 999-5899 Email: gschor@wsgr.com -- and -- Neal Kumar Katyal, Esq. Mitchell P. Reich, Esq. HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, D.C. 20004 Tel: (202) 637-5600 Fax: (202) 637-5910 Email: neal.katyal@hoganlovells.com mitchell.reich@hoganlovells.com -- and -- Thomas P. Schmidt, Esq. HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 10022 Tel: (212) 918-3000 Fax: (212) 918-3100 Email: thomas.schmidt@hoganlovells.com Attorneys for the United States as amicus curiae, by special leave of the Court, in support of affirmance: Allon Kedem, Esq. U.S. Department of Justice Assistant in the Office of the Solicitor General Attorneys for Respondents: Andrew S. Love, Esq. John K. Grant, Esq. ROBBINS GELLER RUDMAN & DOWD LLP One Montgomery Street, Suite 1800 San Francisco, CA 94104 Tel: (415) 288-4545 Fax: (415) 288-4534 Email: alove@rgrdlaw.com johng@rgrdlaw.com -- and -- Thomas C. Goldstein, Esq. Tejinder Singh, Esq. GOLDSTEIN & RUSSELL, P.C. 7475 Wisconsin Avenue, Suite 850 Bethesda, MD 20814 Tel: (202) 362-0636 Fax: (866) 574-2033 Email: tgoldstein@goldsteinrussell.com tsingh@goldsteinrussell.com -- and -- Robert V. Prongay, Esq. Ex Kano S. Sams II, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Tel: (310) 201-9150 Email: RProngay@glancylaw.com ESams@glancylaw.com DYNAMEX OPERATIONS WEST, INC., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; CHARLES LEE et al., Real Parties in Interest, No. S222732 (Cal.). The issue in this case relates to the resolution of the employee or independent contractor question in one specific context. The California Supreme Court was asked to decide what standard applies, under California law, in determining whether workers should be classified as employees or as independent contractors for purposes of California wage orders, which impose obligations relating to the minimum wages, maximum hours, and a limited number of very basic working conditions (such as minimally required meal and rest breaks) of California employees. Two individual delivery drivers, suing on their own behalf and on behalf of a class of allegedly similarly situated drivers, filed a complaint against Dynamex Operations West, Inc., alleging that Dynamex had misclassified its delivery drivers as independent contractors rather than employees. After an earlier round of litigation in which the trial court's initial order denying class certification was reversed by the Court of Appeal, the trial court ultimately certified a class action embodying a class of Dynamex drivers who, during a pay period, did not themselves employ other drivers and did not do delivery work for other delivery businesses or for the drivers' own personal customers. The state Supreme Court agrees with the Court of Appeal that the trial court did not err in concluding that the "suffer or permit to work" definition of "employ" contained in the wage order may be relied upon in evaluating whether a worker is an employee or, instead, an independent contractor for purposes of the obligations imposed by the wage order. In light of its history and purpose, the state Supreme Court concludes that the wage order's suffer or permit to work definition must be interpreted broadly to treat as "employees," and thereby provide the wage order's protection to, all workers who would ordinarily be viewed as working in the hiring business. At the same time, the state Supreme Court concludes that the suffer or permit to work definition is a term of art that cannot be interpreted literally in a manner that would encompass within the employee category the type of individual workers, like independent plumbers or electricians, who have traditionally been viewed as genuine independent contractors who are working only in their own independent business. The state Supreme Court concludes that in determining whether, under the suffer or permit to work definition, a worker is properly considered the type of independent contractor to whom the wage order does not apply, it is appropriate to look to a standard, commonly referred to as the "ABC" test, that is utilized in other jurisdictions in a variety of contexts to distinguish employees from independent contractors. Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. The state Supreme Court concludes that on the facts disclosed by the record, the trial court's certification order is nonetheless correct as a matter of law under a proper understanding of the suffer or permit to work standard and should be upheld. Chief Justice Cantil-Sakauye delivered the opinion. Justices Chin, Corrigan, Liu, Cuellar, Kruger, and Siggins, concurred. Attorneys for Petitioner: Robert G. Hulteng, Esq. Damon M. Ott, Esq. LITTLER MENDELSON P.C. 333 Bush Street 34th Floor San Francisco, CA 94104 Tel: (415) 433-1940 Fax: (415) 399-8490 Email: rhulteng@littler.com dott@littler.com -- and -- Paul S. Cowie, Esq. SHEPPARD MULLIN RICHTER & HAMPTON 379 Lytton Avenue Palo Alto, CA 94301 Tel: (650) 815-2600 Fax: (650) 815-2601 Email: pcowie@sheppardmullin.com Attorneys for California Employment Law Council and Employers Group as Amici Curiae on behalf of Petitioner: Andrew R. Livingston, Esq. Michael Weil, Esq. Kathryn G. Mantoan, Esq. ORRICK, HERRINGTON & SUTCLIFFE The Orrick Building 405 Howard Street San Francisco, CA 94105-2669 Tel: (415) 773-5700 Email: alivingston@orrick.com mweil@orrick.com kmantoan@orrick.com Attorneys for Chamber of Commerce of the United States of America and California Chamber of Commerce as Amici Curiae on behalf of Petitioner: John A. Taylor, Esq. Jeremy B. Rosen, Esq. Felix Shafir, Esq. HORVITZ & LEVY 3601 West Olive Avenue, 8th Floor Burbank, CA 91505 Tel: (818) 995-0800 Fax: (844) 497-6592 Email: jtaylor@horvitzlevy.com jrosen@horvitzlevy.com fshafir@horvitzlevy.com No appearance for Respondent. Attorneys for Real Parties in Interest: Steven Boudreau, Esq. Jon R. Williams, Esq. WILLIAM IAGMIN LLP 666 State Street San Diego, CA 92101 Tel: (619) 238-0370 Email: boudreau@williamsiagmin.com williams@williamsiagmin.com Attorneys for California Rural Legal Assistance Foundation, National Employment Law Project, Los Angeles Alliance for a New Economy, La Raza Centro Legal, Legal Aid Society-Employment Law Center, Asian Americans Advancing Justice-LA, Asian Americans Advancing Justice-ALC, The Impact Fund, Alexander Community Law Center, UCLA Center for Labor Research, Women's Employment Rights Clinic and Worksafe as Amici Curiae on behalf of Real Parties in Interest: Della Barnett, Esq. R. Erandi Zamora, Esq. -- and -- Anthony Mischel, Esq. -- and -- Cynthia L. Rice, Esq. William G. Hoerger, Esq. Jean H. Choi, Esq. California Rural Legal Assistance Foundation 2210 K Street, Suite 201 Sacramento, CA 95816 Tel: (916) 446-7904 Attorneys for California Employment Lawyers Association as Amicus Curiae on behalf of Real Parties in Interest: Monique Olivier, Esq. Olivier Schreiber & Chao, LLP 201 Filbert Street, Suite 201 San Francisco, CA 94133 Tel: (415) 484-0980 Email: monique@osclegal.com Attorneys for Service Employees International Union, United Food and Commercial Workers International Union and International Brotherhood of Teamsters as Amici Curiae on behalf of Real Parties in Interest: Judith A. Scott, Esq. Nicole G. Berner, Esq. JAMES & HOFFMAN, P.C. 1130 Connecticut Avenue, NW, Suite 950 Washington, D.C. 20036 Tel: (202) 496-0500 Fax: (202) 496-0555 Email: jscott@jamhoff.com nicole.berner@seiu.org -- and -- Michael Rubin, Esq. Barbara J. Chisholm, Esq. P. Casey Pitts, Esq. Altshuler Berzon LLP 177 Post ST., Suite 300 San Francisco, CA 94108 Tel: (415) 421-7151 Fax: (415) 362-8064 Email: mrubin@altshulerberzon.com bchisholm@altshulerberzon.com cpitts@altshulerberzon.com -- and -- Nicholas W. Clark, Esq. -- and -- Bradley T. Raymond, Esq. Attorney for Division of Labor Standards Enforcement, Department of Industrial Relations as Amicus Curiae on behalf of Real Parties in Interest: David Balter, Esq. DICKENSON PEATMAN & FOGARTY 1455 First Street, Suite 301 Napa, CA 94559 Tel: (707) 261-7000 Fax: (707) 255-6876 Email: dbalter@dpf-law.com UNITED STATES v. SANCHEZ-GOMEZ ET AL., No. 17–312 (U.S.). The judges of the United States District Court for the Southern District of California adopted a district-wide policy permitting the use of full restraints on most in-custody defendants produced in court for non-jury proceedings by the United States Marshals Service. Jasmin Morales, Rene Sanchez-Gomez, Moises Patricio-Guzman, and Mark Ring challenged the use of these restraints in their cases and the restraint policy as a whole. The District Court denied their challenges, and the respondents appealed to the Court of Appeals for the Ninth Circuit. Before that court could issue a decision, the respondents' criminal cases ended. The court -- viewing the case as a "functional class action" involving "class-like claims" seeking "class-like relief" -- held that the Supreme Court's civil class action precedents saved the case from mootness. On the merits, the Court of Appeals held the policy unconstitutional. The question presented before the Supreme Court is whether the appeals were saved from mootness either because the defendants sought "class-like relief" in a "functional class action," or because the challenged practice was "capable of repetition, yet evading review." The Supreme Court held that the case is moot. The Supreme Court held that federal judiciary may adjudicate only "actual and concrete disputes, the resolutions of which have direct consequences on the parties involved." That dispute "must be extant at all stages of review, not merely at the time the complaint is filed." A case that becomes moot at any point during the proceedings is thus outside the jurisdiction of the federal courts. In concluding that this case was not moot, the Court of Appeals relied upon the Supreme Court's class action precedents, most prominently Gerstein v. Pugh, 420 U.S. 103. That reliance, according to the Supreme Court, was misplaced. Gerstein was a class action respecting pretrial detention brought under Federal Rule of Civil Procedure 23. The named class representatives' individual claims had apparently become moot before class certification. The Supreme Court held that the case could nonetheless proceed, explaining that due to the inherently temporary nature of pretrial detention, no named representative might be in custody long enough for a class to be certified. Gerstein does not support a freestanding exception to mootness outside the class action context. It belongs to a line of cases that the Supreme Court has described as turning on the particular traits of Rule 23 class actions. The Federal Rules of Criminal Procedure establish for criminal cases no vehicle comparable to the civil class action, and the Supreme Court has never permitted criminal defendants to band together to seek prospective relief in their individual cases on behalf of a class. Here, the mere presence of allegations that might, if resolved in the respondents' favor, benefit other similarly situated individuals cannot save their case from mootness. That conclusion is unaffected by the Court of Appeals' decision to recast the respondents' appeals as petitions for supervisory mandamus. The Respondents do not defend the reasoning of the Court of Appeals, and instead argue that the claims of two respondents -- Sanchez-Gomez and Patricio-Guzman -- fall within the "exception to the mootness doctrine for a controversy that is capable of repetition, yet evading review." The Respondents claim that the exception applies because Sanchez-Gomez and Patricio-Guzman will again violate the law, be apprehended, and be returned to pretrial custody. But the Supreme Court said it has consistently refused to "conclude that the case-or-controversy requirement is satisfied by" the possibility that a party "will be prosecuted for violating valid criminal laws." The Respondents argue that this usual refusal to assume future criminal conduct is unwarranted here given the particular circumstances of Sanchez-Gomez's and Patricio-Guzman's offenses. They cite two civil cases -- Honig v. Doe, 484 U. S. 305, and Turner v. Rogers, 564 U. S. 431 -- in which the Supreme Court concluded that the expectation that a litigant would repeat the misconduct that gave rise to his claims rendered those claims capable of repetition. But the Supreme Court said Honig and Turner are inapposite because they concerned litigants unable, for reasons beyond their control, to prevent themselves from transgressing and avoid recurrence of the challenged conduct. Sanchez-Gomez and Patricio-Guzman, in contrast, are "able -- and indeed required by law" -- to refrain from further criminal conduct. Chief Justice Roberts delivered the opinion for a unanimous Court. Attorneys for Petitioner: Noel J. Francisco, Esq. Solicitor General John P. Cronan, Esq. Acting Assistant Attorney General Edwin S. Kneedler, Esq. Deputy Solicitor General Eric J. Feigin, Esq. Allon Kedem, Esq. Assistants to the Solicitor General David B. Goodhand, Esq. Attorney Department of Justice Washington, D.C. Attorneys for Respondents: Ellis Murray Johnston, III, Esq. Reuben Camper Cahn, Esq. Shereen J. Charlick, Esq. Vincent J. Brunkow, Esq. Michele A. McKenzie, Esq. Kimberly S. Trimble, Esq. Kara L. Hartzler, Esq. Federal Defenders of San Diego, Inc. 225 Broadway, Ste 900 San Diego, CA 92101 Tel: (619) 234-8467 Fax: (619) 687-2666 EPIC SYSTEMS CORP. v. LEWIS, No. 16–285 (U.S.). In each of the cases -- EPIC SYSTEMS CORPORATION, PETITIONER v. JACOB LEWIS, 16–285; ERNST & YOUNG LLP, et al., PETITIONERS, v. STEPHEN MORRIS, et al., 16–300; and NATIONAL LABOR RELATIONS BOARD, PETITIONER, v. MURPHY OIL USA, INC., et al., 16–307 -- an employer and employee entered into a contract providing for individualized arbitration proceedings to resolve employment disputes between the parties. Each employee nonetheless sought to litigate Fair Labor Standards Act and related state law claims through class or collective actions in federal court. Although the Federal Arbitration Act generally requires courts to enforce arbitration agreements as written, the employees argued that its "saving clause" removes this obligation if an arbitration agreement violates some other federal law and that, by requiring individualized proceedings, the agreements here violated the National Labor Relations Act (NLRA). The employers countered that the Arbitration Act protects agreements requiring arbitration from judicial interference and that neither the saving clause nor the NLRA demands a different conclusion. Until recently, courts as well as the National Labor Relations Board (NLRB)'s general counsel agreed that the arbitration agreements are enforceable. In 2012, however, the Board ruled that the NLRA effectively nullifies the Arbitration Act in cases like these, and since then other courts have either agreed with or deferred to the Board's position. The questions before the Supreme Court were: Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers? The Supreme Court held that in the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms -- including terms providing for individualized proceedings. The Supreme Court further held that nor can it agree with the employees' suggestion that the NLRA offers a conflicting command. It is the Supreme Court's duty to interpret Congress's statutes as a harmonious whole rather than at war with one another. And abiding that duty here leads to an unmistakable conclusion. The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum. The Supreme Court said it has never read a right to class actions into the NLRA -- and for three quarters of a century neither did the NLRB. Far from conflicting, the Arbitration Act and the NLRA have long enjoyed separate spheres of influence and neither permits the Supreme Court to declare the parties' agreements unlawful. Justice Gorsuch delivered the opinion of the Court, in which Chief Justice Roberts, and Justices Kennedy, Thomas and Alito, joined. Justice Thomas filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor and Kagan, joined. Attorneys for the United States as amicus curiae, by special leave of the Court, supporting the petitioners in Nos. 16-285 and 16-300 and respondents in No. 16-307: Jeffrey B. Wall, Esq. Attorneys for Epic Systems Corporation and Murphy Oil USA, Inc.: Paul D. Clement, Esq. Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005-5793 Tel: (202) 879-5000 Email: paul.clement@kirkland.com -- and -- Neal Kumar Katyal, Esq. Colleen E. Roh Sinzdak, Esq. Hogan Lovells US LLP Columbia Square 555 Thirteenth Street, NW Washington, D.C. 20004 Tel: (202) 637-5600 Fax: (202) 637-5910 Email: neal.katyal@hoganlovells.com colleen.sinzdak@hoganlovells.com -- and -- Thomas P. Schmidt, Esq. Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 Tel: (212) 918-5547 Fax: (212) 918-3100 Email: thomas.schmidt@hoganlovells.com Attorneys for Epic Systems Corporation: Noah A. Finkel, Esq. Andrew Scroggins, Esq. Seyfarth Shaw LLP 233 South Wacker Drive, Suite 8000 Chicago, IL 60606-6448 Tel: (312) 460-5000 Fax: (312) 460-7000 Email: nfinkel@seyfarth.com ascroggins@seyfarth.com Attorneys for Murphy Oil USA, Inc.: Jeffrey A. Schwartz, Esq. Jackson Lewis P.C. 1155 Peachtree Street N.E., Suite 1000 Atlanta, GA 30309 Tel: (404) 525-8200 Fax: (404) 525-1173 Email: Jake.Schwartz@jacksonlewis.com -- and -- Daniel D. Schudroff, Esq. Jackson Lewis P.C. 666 Third Avenue, 29th Floor New York, NY 10017 Tel: (212) 545-4000 Fax: (212) 972-3213 Email: Daniel.Schudroff@jacksonlewis.com Attorneys for Jacob Lewis, Respondent in No. 16-285: David C. Zoeller, Esq. William E. Parsons, Esq. Caitlin M. Madden, Esq. Katelynn M. Williams, Esq. Madison, WI -- and -- Daniel R. Ortiz, Esq. Toby J. Heytens, Esq. University of Virginia School of Law Supreme Court Litigation Clinic Charlottesville, VA -- and -- Adam Hansen, Esq. Apollo Law LLC 3217 Hennepin Avenue South, Suite 7 Minneapolis, MN 55408 Tel: (612) 927-2969 Email: adam@apollo-law.com Attorneys for Ernst & Young, et al., Petitioners in No. 16-300: Paul D. Clement, Esq. Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005-5793 Tel: (202) 879-5000 Email: paul.clement@kirkland.com -- and -- Pratik A. Shah, Esq. Daniel L. Nash, Esq. Akin Gump Strauss Hauer & Feld LLP Robert S. Strauss Building 1333 New Hampshire Avenue, N.W. Washington, DC 20036-1564 Tel: (202) 887-4000 Fax: (202) 887-4288 Email: pshah@akingump.com dnash@akingump.com -- and -- Kannon K. Shanmugam, Esq. Allison Jones Rushing, Esq. A. Joshua Podoll, Esq. William T. Marks, Esq. Eden Schiffmann, Esq. Williams & Connolly LLP, Washington, DC -- and -- Rex S. Heinke, Esq. Gregory W. Knopp, Esq. Akin Gump Strauss Hauer & Feld LLP 1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067-6022 Tel: (310) 229-1000 Fax: (310) 229-1001 Email: rheinke@akingump.com gknopp@akingump.com Attorneys for Stephen Morris, et al., Respondents in No. 16-300: Ross Libenson, Esq. Libenson Law The Kaiser Center 300 Lakeside Dr. Oakland, CA Tel: (510) 451-4441 Email: ross@libensonlaw.com -- and -- H. Tim Hoffman, Esq. Oakland, CA -- and -- Max Folkenflik, Esq. Margaret McGerity, Esq. Folkenflik & McGerity, LLP 1500 Broadway, 21st Floor New York, NY 10036 Tel: (212) 757-0400 Fax: (212) 757-2010 Email: MFolkenflik@fmlaw.net MMcGerity@fmlaw.net Attorneys for National Labor Relations Board: Richard F. Griffin, Jr., Esq. General Counsel Jennifer Abruzzo, Esq. Deputy General Counsel John H. Ferguson, Esq. Associate General Counsel Linda Dreeben, Esq. Deputy Associate General Counsel Meredith Jason, Esq. Deputy Assistant General Counsel Kira Dellinger Vol, Esq. Supervisory Attorney Jeffrey W. Burritt, Esq. Attorney Washington, DC Alex M. AZAR, II, Secretary of Health and Human Services, et al., v. Rochelle GARZA, as guardian ad litem to unaccompanied minor J.D., No. 17-654 (U.S.) Jane Doe, a minor, was eight weeks pregnant when she unlawfully crossed the border into the United States. She was detained and placed into the custody of the Office of Refugee Resettlement (ORR), part of the Department of Health and Human Services. ORR placed her in a federally funded shelter in Texas. After an initial medical examination, Doe requested an abortion. But ORR did not allow Doe to go to an abortion clinic. Absent "emergency medical situations," ORR policy prohibits shelter personnel from "taking any action that facilitates an abortion without direction and approval from the Director of ORR." Respondent Rochelle Garza, Doe's guardian ad litem, filed a putative class action on behalf of Doe and "all other pregnant unaccompanied minors in ORR custody" challenging the constitutionality of ORR's policy. On October 18, 2017, the District Court issued a temporary restraining order allowing Doe to obtain an abortion immediately. On October 20, a panel of the Court of Appeals for the District of Columbia Circuit vacated the relevant portions of the temporary restraining order. Noting that the Government had assumed for purposes of this case that Doe had a constitutional right to an abortion, the panel concluded that ORR's policy was not an "undue burden." On October 24, the Court of Appeals, sitting en banc, vacated the panel order and remanded the case to the District Court. The same day, Garza sought an amended restraining order. The Government planned to ask the Supreme Court for emergency review of the en banc order but sometime over the course of the night and the following day, Garza's lawyers informed the Government that Doe "had the abortion this morning." The abortion rendered the relevant claim moot, so the Government did not file its emergency stay application. Instead, the Government filed this petition for certiorari. The Supreme Court held that when "a civil case from a court in the federal system . . . has become moot while on its way here," the Supreme Court's "established practice" is "to reverse or vacate the judgment below and remand with a direction to dismiss." The litigation over Doe's temporary restraining order falls squarely within the Supreme Court's established practice. Doe's individual claim for injunctive relief -- the only claim addressed by the D.C. Circuit -- became moot after the abortion. It is undisputed that Garza and her lawyers prevailed in the D.C. Circuit, took voluntary, unilateral action to have Doe undergo an abortion sooner than initially expected, and thus retained the benefit of that favorable judgment. And although not every moot case will warrant vacatur, the fact that the relevant claim here became moot before certiorari does not limit the Supreme Court's discretion. The unique circumstances of this case and the balance of equities weigh in favor of vacatur. The Government also suggests that opposing counsel made "what appear to be material misrepresentations and omissions" that were "designed to thwart this Court's review." The Respondent says this suggestion is "baseless." The Supreme Court takes allegations like those the Government makes here seriously, for ethical rules are necessary to the maintenance of a culture of civility and mutual trust within the legal profession. On the one hand, all attorneys must remain aware of the principle that zealous advocacy does not displace their obligations as officers of the court. Especially in fast-paced, emergency proceedings like those at issue here, it is critical that lawyers and courts alike be able to rely on one another's representations. On the other hand, lawyers also have ethical obligations to their clients and not all communication breakdowns constitute misconduct. The Supreme Court said it need not delve into the factual disputes raised by the parties in order to answer the Munsingwear question here. Accordingly, the Supreme Court granted the petition for a writ of certiorari, vacated the en banc order, and remanded the case to the D.C. Circuit with instructions to direct the District Court to dismiss the relevant individual claim for injunctive relief as moot. Attorneys for Plaintiff ROCHELLE GARZA: Arthur B. Spitzer, Esq. American Civil Liberties Union Of The District Of Columbia Tel: (202) 457-0800 Email: artspitzer@gmail.com -- and -- Scott Michelman, Esq. American Civil Liberties Union Of The District Of Columbia Tel: (202) 601-4267 Email: smichelman@acludc.org -- and -- Brigitte Amiri, Esq. American Civil Liberties Union Foundation Tel: (212) 549-2500 Email: bamiri@aclu.org -- and -- Daniel Mach, Esq. American Civil Liberties Union Foundation Tel: (202) 548-6604 Email: dmach@aclu.org Attorneys for Defendant STEPHEN WAGNER, SCOTT LLOYD, AND ERIC HARGAN: Michael H. Park, Esq. Consovoy Mccarthy Park PLLC 745 Fifth Avenue, Suite 500 New York, NY 10151 Tel: (212) 247-8006 Email: park@consovoymccarthy.com -- and -- William S. Consovoy, Esq. Consovoy Mccarthy Park PLLC 3033 Wilson Boulevard, Suite 700 Arlington, VA 22201 Tel: (703) 243-9423 Email: will@consovoymccarthy.com -- and -- Patrick Neilson Strawbridge, Esq. Consovoy Mccarthy Park LLC Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 Tel: (617) 227-0548 Email: Patrick@consovoymccarthy.com -- and -- Sabatino Fioravante Leo, Esq. Ernesto Horacio Molina, Jr., Esq. Joseph Anton Darrow, Esq. Scott Grant Stewart, Esq. Alexander Kenneth Haas, Esq. Michael Christopher Heyse, Esq. Woei-Tyng Daniel Shieh, Esq. United States Department Of Justice Tel: (202) 514-8599 Email: sabatino.f.leo@usdoj.gov ernesto.h.molina@usdoj.gov joseph.a.darrow@usdoj.gov scott.g.stewart@usdoj.gov alexander.haas@usdoj.gov michael.heyse@usdoj.gov daniel.shieh@usdoj.gov Attorney for Amicus STATE OF OKLAHOMA, STATE OF SOUTH CAROLINA, STATE OF TEXAS, STATE OF WEST VIRGINIA, STATE OF MICHIGAN, STATE OF MISSOURI, STATE OF NEBRASKA, STATE OF OHIO, COMMONWEALTH OF KENTUCKY, STATE OF ARKANSAS, and STATE OF LOUISIANA: Scott A. Keller, Esq. Office Of The Texas Attorney General Tel: (512) 936-2725 Email: scott.keller@texasattorneygeneral.gov CHINA AGRITECH, INC. v. RESH ET AL., No. 17–432 (U.S.). American Pipe & Constr. Co. v. Utah, 414 U. S. 538, established that the timely filing of a class action tolls the applicable statute of limitations for all persons encompassed by the class complaint and that members of a class that fails to gain certification can timely intervene as individual plaintiffs in the still-pending action, shorn of its class character. American Pipe's tolling rule also applies to putative class members who, after denial of class certification, "prefer to bring an individual suit rather than intervene." The question presented in this case is whether American Pipe tolling applies not only to individual claims, but to successive class actions as well. The Supreme Court held that upon denial of class certification, a putative class member may not, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations. American Pipe and Crown, Cork addressed only putative class members who wish to sue individually after a class-certification denial. The "efficiency and economy of litigation" that support tolling of individual claims, do not support maintenance of untimely successive class actions such as the one brought by Michael Resh. Economy of litigation favors delaying individual claims until after a class-certification denial. With class claims, on the other hand, efficiency favors early assertion of competing class representative claims. If class treatment is appropriate, and all would-be representatives have come forward, the district court can select the best plaintiff with knowledge of the full array of potential class representatives and class counsel. And if the class mechanism is not a viable option, the decision denying certification will be made at the outset of the case, litigated once for all would-be class representatives. Federal Rule of Procedure 23 evinces a preference for preclusion of untimely successive class actions by instructing that class certification should be resolved early on. The Private Securities Litigation Reform Act of 1995 (PSLRA), which governs this litigation, evinces a similar preference, this time embodied in legislation providing for early notice and lead-plaintiff procedures. The Supreme Court held that there is little reason to allow plaintiffs who passed up opportunities to participate in the first (and second) round of class litigation to enter the fray several years after class proceedings first commenced. Class representatives who commence suit after expiration of the limitation period are unlikely to qualify as diligent in asserting claims and pursuing relief, the Supreme Court said. And respondents' proposed reading would allow extension of the statute of limitations time and again; as each class is denied certification, a new named plaintiff could file a class complaint that resuscitates the litigation. Endless tolling of a statute of limitations is not a result envisioned by American Pipe. Justice Ginsburg delivered the opinion of the Court, in which Chief Justice Roberts, and Justices Kennedy, Thomas, Breyer, Alito, Kagan, and Gorsuch, joined. Justice Sotomayor filed an opinion concurring in the judgment. Attorney for Petitioner: Seth Alben Aronson, Esq. William K. Pao, Esq. Brittany Rogers, Esq. Michelle C. Leu, Esq. O'Melveny & Myers LLP 400 South Hope Street 18th Floor Los Angeles, CA 90071 Tel: (213) 430-7486 Email: saronson@omm.com wpao@omm.com brogers@omm.com mleu@omm.com -- and -- Abby F. Rudzin, Esq. Anton Metlitsky, Esq. O'Melveny & Myers LLP, Times Square Tower 7 Times Square New York, NY 10036 Tel: (212) 326-2000 Email: arudzin@omm.com ametlitsky@omm.com -- and -- Bradley N. Garcia, Esq. Jason Zarrow, Esq. O'Melveny & Myers LLP 1625 Eye Street, NW Washington, DC 20006 Tel: (202) 383-5300 Email: bgarcia@omm.com jzarrow@omm.com Attorney for Respondent: David C. Frederick, Esq. Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. SUMNER SQUARE 1615 M STREET, N.W., SUITE 400 WASHINGTON, D.C. 20036 Tel: (202) 326-7951 Fax: (202) 326-7999 Email: dfrederick@kellogghansen.com Attorneys for Respondents William Schoenke, Heroca Holding, B.V., and Ninella Beheer, B.V.: Matthew M. Guiney, Esq. Wolf Haldenstein Adler, Freeman & Herz LLP 270 Madison Avenue New York, NY 10016 Tel: (212) 545-4761 Email: guiney@whafh.com -- and -- David A.P. Brower, Esq. Brower Piven, A Professional Corporation 136 Madison Avenue, 5th Floor New York, NY 10016 Tel: (212) 501-9000 Fax: (212) 501-0300 Email: brower@browerpiven.com -- and -- Betsy C. Manifold, Esq. Wolf Haldenstein Adler, Freeman & Herz LLP Symphony Towers 750 B Street, Suite 2770 San Diego, CA 92101 Tel: (619) 234-3896 Email: manifold@whafh.com -- and -- David C. Frederick, Esq. Jeremy S.B. Newman, Esq. Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. SUMNER SQUARE 1615 M STREET, N.W., SUITE 400 WASHINGTON, D.C. 20036 Tel: (202) 326-7951 Fax: (202) 326-7999 Email:jnewman@kellogghansen.com Attorneys for Respondent, Charles Law: Charles Eric Coleman, Esq. Lewis Brisbois Bisgaard & Smith, LLP 2020 West El Camino Avenue, Suite 700 Sacramento, CA 95833 Tel: (916) 646-8222 Fax: (916) 564-5444 Email: Charles.Coleman@lewisbrisbois.com Attorneys for Washington Legal Foundation: George Edward Anhang, Esq. COOLEY LLP Email: GAnhang@Cooley.com Attorneys for National Conference on Public Employee Retirement Systems: Max W. Berger, Esq. Bernstein Litowitz Berger & Grossmann LLP 1251 Avenue of the Americas New York, NY 10020 Tel: (212) 554-1403 Fax: (212) 554-1444 Email: MWB@blbglaw.com Attorneys for Retired Federal Judges: Andrew Nathan Goldfarb, Esq. Zuckerman Spaeder LLP 1800 M Street NW, Suite 1000 Washington, DC 20036-5807 Tel: (202) 778-1822 Fax: (202) 822-8106 Email: agoldfarb@zuckerman.com Attorneys for American Association for Justice, et al.: Deepak Gupta, Esq. Gupta Wessler PLLC 1900 L Street, NW, Suite 312 Washington, DC 20036 Tel: (202) 888-1741 Email: deepak@guptawessler.com Attorneys for Securities Industry and Financial Markets Association: Lewis Jeffrey Liman, Esq. Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 Tel: (212) 225-2550 Email: lliman@cgsh.com Attorneys for Law Professors: Lumen N. Mulligan, Esq. University of Kansas School of Law 1535 W 15th St. Lawrence, KS 66045 Email: lumen@ku.edu Attorneys for Public Citizen, Inc.: Scott Lawrence Nelson, Esq. Public Citizen Litigation Group 1600 20th Street NW Washington, D.C. 20009 Tel: (202) 588-1000 Email: snelson@citizen.org Attorneys for AARP and AARP Foundation: Julie Nepveu, Esq. AARP Foundation Litigation Email: jnepveu@aarp.org Attorneys for Chamber of Commerce of the United States of America, et al.: Mark Andrew Perry, Esq. Gibson, Dunn & Crutcher, LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 USA Tel: (202) 887-3667 Fax: (202) 467-0539 Email: mperry@gibsondunn.com Attorneys for Plaintiffs in Post-Dukes Successor Class Actions: Joseph Marc Sellers, Esq. Cohen Milstein Sellers & Toll PLLC 1100 New York Ave., NW, Fifth Floor Washington, DC 20005 Tel: (202) 408-4600 Fax: (202) 408-4699 Email: jsellers@cohenmilstein.com Attorneys for DRI - The Voice of the Defense Bar: Robert Latane Wise, Esq. Bowman and Brooke LLP 901 East Byrd Street, Suite 1650 Richmond, VA 23219 Tel: (804) 819-1134 Fax: (804) 649-1762 Email: rob.wise@bowmanandbrooke.com -- and -- Susan E. Burnett, Esq. Bowman and Brooke LLP 2901 Via Fortuna Drive, Suite 500 Austin, TX 78746 Tel: (512) 874-3844 Fax: (512) 874-3801 Email: susan.burnett@bowmanandbrooke.com Attorneys for Washington Legal Foundation: Lyle Roberts, Esq. Cooley LLP Email: lroberts@cooley.com TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. HAWAII ET AL., No. 17–965 (U.S.). In September 2017, the President issued Proclamation No. 9645, seeking to improve vetting procedures for foreign nationals traveling to the United States by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present a security threat. The Proclamation placed entry restrictions on the nationals of eight foreign states -- Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen -- whose systems for managing and sharing information about their nationals the President deemed inadequate. Plaintiffs -- the State of Hawaii, three individuals with foreign relatives affected by the entry suspension, and the Muslim Association of Hawaii -- argue that the Proclamation violates the Immigration and Nationality Act (INA) and the Establishment Clause. The District Court granted a nationwide preliminary injunction barring enforcement of the restrictions. The Ninth Circuit affirmed, concluding that the Proclamation contravened two provisions of the INA: Section 1182(f), which authorizes the President to "suspend the entry of all aliens or any class of aliens" whenever he "finds" that their entry "would be detrimental to the interests of the United States," and Section 1152(a)(1)(A), which provides that "no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence." The court did not reach the Establishment Clause claim. The issues before the Supreme Court were whether the President had authority under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of the First Amendment. The Supreme Court found that the President has lawfully exercised the broad discretion granted to him under Section 1182(f) to suspend the entry of aliens into the United States. The sole prerequisite set forth in Section 1182(f) is that the President "find[ ]" that the entry of the covered aliens "would be detrimental to the interests of the United States." The Supreme Court said the President has undoubtedly fulfilled that requirement here. Even assuming that some form of inquiry into the persuasiveness of the President's findings is appropriate, but see Webster v. Doe, 486 U. S. 592, 600, the plaintiffs' attacks on the sufficiency of the findings cannot be sustained, the Supreme Court held. The Plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President's stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims. At the heart of their case is a series of statements by the President and his advisers both during the campaign and since the President assumed office. The issue, however, is not whether to denounce the President's statements, but the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, the Court must consider not only the statements of a particular President, but also the authority of the Presidency itself. The Supreme Court ruled that admission and exclusion of foreign nationals is a "fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Although foreign nationals seeking admission have no constitutional right to entry, the Supreme Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen. That review is limited to whether the Executive gives a "facially legitimate and bona fide" reason for its action, but the Court need not define the precise contours of that narrow inquiry in this case. The Supreme Court also pointed out three additional features of the entry policy support the Government's claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries -- Iraq, Sudan, and Chad -- have been removed from the list. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for various categories of foreign nationals. Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. Chief Justice Roberts delivered the opinion of the Court, in which Justices Kennedy, Thomas, Alito, and Gorsuch, joined. Justices Kennedy and Thomas filed concurring opinions. Justice Breyer filed a dissenting opinion, in which Justice Kagan, joined. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined. Attorneys for Petitioners: Noel J. Francisco, Esq. Solicitor General Chad A. Readler, Esq. Acting Assistant Attorney, General Jeffrey B. Wall, Esq. Edwin S. Kneedler, Esq. Deputy Solicitors General Hashim M. Moopan, Esq. Deputy Assistant Attorney, General Jonathan C. Bond, Esq. Michael R. Huston, Esq. Assistants to the Solicitor, General Sharon Swingle, Esq. H. Thomas Byron III, Esq. Attorney Department of Justice Washington, DC Attorneys for Respondents: Neal Kumar Katyal, Esq. Mitchell P. Reich, Esq. Elizabeth Hagerty, Esq. Sundeep Iyer, Esq. Reedy C. Swanson, Esq. HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, D.C. 20004 Tel: (202) 637-5600 Fax: (202) 637-5910 Email: neal.katyal@hoganlovells.com mitchell.reich@hoganlovells.com elizabeth.hagerty@hoganlovells.com -- and -- Thomas P. Schmidt, Esq. Sara Solow, Esq. Alexander B. Bowerman, Esq. HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 10022 Tel: (212) 918-3000 Fax: (212) 918-3100 Email: thomas.schmidt@hoganlovells.com sara.solow@hoganlovells.com alexander.bowerman@hoganlovells.com Attorneys for the State of Hawaii: Russell A. Suzuki, Esq. Acting Attorney General Clyde J. Wadsworth, Esq. Solicitor General Deirdre Marie-Iha, Esq. Donna H. Kalama, Esq. Kimberly T. Guidry, Esq. Robert T. Nakatsuji, Esq. Kaliko'onalani D. Fernandes, Esq. Kevin M. Richardson, Esq. Deputy Attorneys General Department of the Attorney General Honolulu, HI Mark JANUS, Petitioner, v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, et al., No. 16–1466 (U.S.). Illinois law permits public employees to unionize. If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees, even those who do not join. Only the union may engage in collective bargaining; individual employees may not be represented by another agent or negotiate directly with their employer. Non-members are required to pay what is generally called an "agency fee," i.e., a percentage of the full union dues. Under Abood v. Detroit Bd. of Ed., 431 U. S. 209, 235–236, this fee may cover union expenditures attributable to those activities "germane" to the union's collective-bargaining activities (chargeable expenditures), but may not cover the union's political and ideological projects (nonchargeable expenditures). The union sets the agency fee annually and then sends non-members a notice explaining the basis for the fee and the breakdown of expenditures. Here it was 78.06% of full union dues. Petitioner Mark Janus is a state employee whose unit is represented by a public-sector union (Union), one of the respondents. He refused to join the Union because he opposes many of its positions, including those taken in collective bargaining. Illinois' Governor, similarly opposed to many of these positions, filed suit challenging the constitutionality of the state law authorizing agency fees. The state attorney general, another respondent, intervened to defend the law, while Janus moved to intervene on the Governor's side. The District Court dismissed the Governor's challenge for lack of standing, but it simultaneously allowed Janus to file his own complaint challenging the constitutionality of agency fees. The District Court granted respondents' motion to dismiss on the ground that the claim was foreclosed by Abood. The Seventh Circuit affirmed. The Supreme Court held that states and public-sector unions may no longer extract agency fees from non-consenting employees. The Supreme Court said the First Amendment is violated when money is taken from non-consenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. The Supreme Court recognized the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood, the Supreme Court said, was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. The Supreme Court, therefore, overruled Abood. Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Gorsuch, joined. Justice Sotomayor filed a dissenting opinion. Justice Kagan filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Sotomayor joined. Attorneys for Petitioner: William L. Messenger, Esq. Aaron B. Solem, Esq. National Right to Work Legal Defense Foundation, Inc. 8001 Braddock Road Springfield, VA 22160 Tel: (703) 321-8510 Fax: (703) 321-9613 -- and -- Dan K. Webb, Esq. Joseph J. Torres, Esq. Lawrence R. Desideri, Esq. Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601-9703 Tel: (312) 558-5600 Fax: (312) 558-5700 Email: dwebb@winston.com jtorres@winston.com ldesideri@winston.com -- and -- Jacob H. Huebert, Esq. Jeffrey M. Schwab, Esq. Liberty Justice Center Chicago, IL Attorney for the United States as amicus curiae, by special leave of the Court, supporting the Petitioner: Noel J. Francisco, Esq. Solicitor General Attorneys for the State Respondents: David L. Franklin, Esq. Solicitor General Chicago, IL Attorneys for the Respondent AFSCME Council 31: David C. Frederick, Esq. Washington, DC Attorneys for Respondents Lisa Madigan and Michael Hoffman: Lisa Madigan, Esq. Attorney General State of Illinois -- and -- David L. Franklin, Esq. Solicitor General Counsel of Record -- and -- Brett E. Legner, Esq. Deputy Solicitor General -- and -- Frank H. Bieszczat, Esq. Jane Flanagan, Esq. Sarah A. Hunger, Esq. Richard S. Huszagh, Esq. Lindsay Beyer Payne, Esq. Andrew Tonelli, Esq. Assistant Attorneys General Chicago, IL Attorneys for Respondent American Federation of State, County, and Municipal Employees, Council 31: John M. West, Esq. Bredhoff & Kaiser, PLLC 805 Fifteenth Street N.W. Washington, DC 20005-2207 Tel: (202) 842-2600 -- and -- Judith E. Rivlin, Esq. Teague P. Paterson, Esq. AFSCME Washington, DC -- and -- David C. Frederick, Esq. Derek T. Ho, Esq. Benjamin S. Softness, Esq. KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. Sumner Square 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 Tel: (202) 326-7900 Email: dfrederick@kellogghansen.com dho@kellogghansen.com bsoftness@kellogghansen.com David JENNINGS et al., Petitioners v. Alejandro RODRIGUEZ et al., individually and on behalf of all others similarly situated, No. 15-1204 (U.S.). Alejandro Rodriguez is a Mexican citizen. Since 1987, he has also been a lawful permanent resident of the United States. In April 2004, after Rodriguez was convicted of a drug offense and theft of a vehicle, the Government detained him under Section 1226 and sought to remove him from the country. At his removal hearing, Rodriguez argued both that he was not removable and, in the alternative, that he was eligible for relief from removal. In July 2004, an Immigration Judge ordered Rodriguez deported to Mexico. Rodriguez chose to appeal that decision to the Board of Immigration Appeals, but five months later the Board agreed that Rodriguez was subject to mandatory removal. Once again, Rodriguez chose to seek further review, this time petitioning the Court of Appeals for the Ninth Circuit for review of the Board's decision. In May 2007, while Rodriguez was still litigating his removal in the Court of Appeals, he filed a habeas petition in the District Court for the Central District of California, alleging that he was entitled to a bond hearing to determine whether his continued detention was justified. Rodriguez's case was consolidated with another, similar case brought by Alejandro Garcia, and together they moved for class certification. The District Court denied their motion, but the Court of Appeals for the Ninth Circuit reversed, concluding that the proposed class met the certification requirements of Rule 23 of the Federal Rules of Civil Procedure. On remand, the District Court certified the following class: All non-citizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified. In their complaint, Rodriguez and the other respondents argued that the relevant statutory provisions -- Sections 1225(b), 1226(a), and 1226(c) -- do not authorize "prolonged" detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the class member's detention remains justified. Absent such a bond-hearing requirement, respondents continued, those three provisions would violate the Due Process Clause of the Fifth Amendment. As relevant here, the District Court entered a permanent injunction in line with the relief sought by respondents, and the Court of Appeals affirmed. Relying heavily on the canon of constitutional avoidance, the Court of Appeals construed Sections 1225(b) and 1226(c) as imposing an implicit 6-month time limit on an alien's detention under these sections. After that point, the Court of Appeals held, the Government may continue to detain the alien only under the authority of Section 1226(a). The Court of Appeals then construed Section 1226(a) to mean that an alien must be given a bond hearing every six months and that detention beyond the initial 6 month period is permitted only if the Government proves by clear and convincing evidence that further detention is justified. In this case the Supreme Court is asked to interpret three provisions of U.S. immigration law that authorize the Government to detain aliens in the course of immigration proceedings. All parties appear to agree that the text of these provisions, when read most naturally, does not give detained aliens the right to periodic bond hearings during the course of their detention. But by relying on the constitutional-avoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue. Under the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems. But a court relying on that canon still must interpret the statute, not rewrite it. Because the Court of Appeals in this case adopted implausible constructions of the three immigration provisions at issue, the Supreme Court reverses the lower court's judgment and remands for further proceedings. Justice Alito delivered the opinion of the Court, except as to Part II. Chief Justice Roberts and Justice Kennedy joined that opinion in full; Justices Thomas and Gorsuch joined as to all but Part II; and Justice Sotomayor joined as to Part III–C. Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined except for footnote 6. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg and Sotomayor joined. Justice Kagan took no part in the decision of the case. Attorneys for Petitioner, David Jennings, et al.: Noel J. Francisco, Esq. Solicitor General United States Department of Justice Email: SupremeCtBriefs@USDOJ.gov -- and -- Edwin Smiley Kneedler, Esq. Malcolm L. Stewart, Esq. Department of Justice Email: Judith.L.Reardon-Bridges@usdoj.gov Attorneys for Respondents, Alejandro Rodriguez, et al.: Ahilan T. Arulanantham, Esq. Michael Kaufman, Esq. Peter Jay Eliasberg, Esq. ACLU Foundation of Southern CA Email: aarulanantham@aclusocal.org -- and -- Judy Rabinovitz, Esq. Michael K.T. Tan, Esq. ACLU Immigrants' Rights Project New York,NY -- and -- Cecillia D. Wang, Esq. ACLU Immigrants' Rights Project San Francisco, CA -- and -- Jayashri Srikantiah, Esq. Stanford Law School Mills Legal Clinic Stanford, CA -- and -- Sean Ashley Commons, Esq. Sidley Austin LLP 555 WEST FIFTH STREET LOS ANGELES, CA 90013 Tel: (213) 896-6000 FAX: (213) 896-6600 Email: scommons@sidley.com -- and -- Steven Andrew Ellis, Esq. Goodwin Procter LLP 601 South Figueroa Street 41st Floor Los Angeles, CA 90017 Tel: (213) 426-2614 Email: sellis@goodwinlaw.com Attorneys for Professors of Constitutional, Immigration, and Administrative Law. Dennis Auerbach, Esq. Covington & Burling LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001-4956 Tel: (202) 662-6000 Email: dauerbach@cov.com Attorneys for Nine Retired Immigration Judges, and Board of Immigration Appeals Members: James Joseph Beha, II, Esq. Morrison & Foerster 250 West 55th Street New York, NY 10019-9601 Tel: (212) 336-4079 Fax: (212) 468-7900 Email: jbeha@mofo.com Attorneys for Members of Asian Americans Advancing Justice: Anjan Choudhury, Esq. Munger Tolles & Olson LLP 350 South Grand Avenue, 50th Floor Los Angeles, CA 90071 Tel: (213) 683-9107 Email: anjan.choudhury@mto.com Attorneys for 43 Social Science Researchers and Professors: Kelsi Brown Corkran, Esq. Orrick Herrington & Sutcliffe LLP Columbia Center 1152 15th Street, N.W. Washington, D.C. 20005-1706 Tel: (202) 339-8497 Email: kcorkran@orrick.com Attorneys for Americans for Immigrant Justice, et al.: Alina Das, Esq. Washington Square Legal Services, Inc. Email: alina.das@nyu.edu Attorneys for National Association of Criminal Defense Lawyers, et al.: James J. Farrell, Esq. Latham & Watkins LLP 885 Third Avenue New York, NY 10022-4834 Tel: (212) 906-1215 Fax: (212) 751-4864 Email: james.farrell@lw.com Attorneys for American Immigration Council, and American Immigration Lawyers Association: Mark C. Fleming, Esq. Wilmer Cutler Pickering Hale & Dorr LLP 60 State Street Boston, MA 02109 Tel: (617) 526-6909 Email: mark.fleming@wilmerhale.com Attorneys for Professors Stephen Legomsky, and Stephen Yale-Loehr in support of respondents: Justin G. Florence, Esq. Ropes & Gray LLP Email: justin.florence@ropesgray.com Attorneys for National Immigration Project of the National Lawyers Guild, and the Immigrant Legal Resource Center: David C. Frederick, Esq. Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. SUMNER SQUARE 1615 M STREET, N.W., SUITE 400 WASHINGTON, D.C. 20036 Tel: (202) 326-7951 Fax: (202) 326-7999 Email: dfrederick@kellogghansen.com Attorneys for Human Rights First in support of respondent: Eugene Martin Gelernter, Esq. Paterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York NY 10036 Tel: (212) 336-2553 Fax: (212) 336-2393 Email: emgelernter@pbwt.com Attorneys for County of Santa Clara California, and 19 Additional Counties: Greta Suzanne Hansen, Esq. Lead Deputy County Counsel Office of the County Counsel Email: greta.hansen@cco.sccgov.org Attorneys for Eagle Forum Education & Legal Defense Fund in support of petitioners Eagle Forum Education & Legal Defense Fund: Steven A. Hirsch, Esq. Keker & Van Nest, LLP 633 Battery Street San Francisco, CA 94111-1809 Tel: (415) 391-5400 Email: shirsch@kvn.com -- and -- Lawrence J. Joseph, Esq. Email: lj@larryjoseph.com Attorneys for American Bar Association in support of respondents: Linda A. Klein, Esq. President, American Bar Association Email: abapresident@americanbar.org Attorneys for Detained Legal Services Providers: Brian J. Murray, Esq. Jones Day 77 West Wacker Chicago, IL 60601-1692 Tel: (312) 782-3939 Fax: (312) 782-8585 Email: bjmurray@jonesday.com Attorneys for United Nations High Commissioner for Refugees: Amy Mason Saharia, Esq. Williams & Connolly LLP 725 Twelfth Street NW Washington D.C. 20005 Tel: (202) 434-5847 Email: asaharia@wc.com Attorneys for 29 U.S. Representatives; chairman Robert Goodlatte, et al.: Richard A. Samp, Esq. Washington Legal Foundation Email: rsamp@wlf.org Attorneys for State of California, et al.: Samuel Passchier Siegel, Esq. Associate Deputy Solicitor General Email: Sam.Siegel@doj.ca.gov ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. 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