Gelboim v. Bank of America Corp.

Issues

In what circumstances may a party, under 28 U.S.C. § 1291, immediately appeal an order dismissing a claim arising from a case that has been consolidated with other suits for pretrial purposes?

Under 28 U.S.C § 1291, a federal court of appeals has jurisdiction over a district court’s final decision. This case will determine when a party, involved in a pretrial consolidation, can appeal its individual dismissal. In this case, the district court consolidated Gelboim’s claim with other claims for pretrial purposes, but subsequently dismissed Gelboim’s individual claim. Gelboim argues that because the district court dismissed her individual claim, the district court’s decision on her claim is a final decision that is immediately appealable regardless of whether there are still claims from the consolidated action pending district court review. Gelboim also argues that if dismissed claims are not immediately appealable, claims will be in stasis for an indefinite period of time, which will lead to the waste of judicial time and resources. Bank of America counters by claiming that consolidated claims should be reviewed as a unit regardless of whether consolidation occurs only for pretrial purposes or for all purposes. Bank of America believes that this practice is consistent with Congress’s intent to reduce “needless duplication of effort.” The outcome of this case will affect which court decides when a case is ready for appeal, and how much discretion district courts will have in dealing with multidistrict litigation. 

Questions as Framed for the Court by the Parties

Whether and in what circumstances is the dismissal of an action that has been consolidated with other suits immediately appealable?

The London Interbank Offered Rate (“LIBOR”) is an international method of calculating interest rates. See In re LIBOR-based Fin. Instruments Antitrust Litig., 935 F. Supp. 2d 666, 677 (S.D.N.Y. 2013). LIBOR is important because it is the rate that banks charge to other banks for short-term loans.

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Department of Transportation v. Association of American Railroads

Issues

Does section 207 of the Passenger Rail Investment and Improvement Act, which allows Amtrak and the government to cooperate in developing railroad-related metrics and standards, give Amtrak unconstitutional regulatory power under the non-delegation doctrine?

The Supreme Court will consider whether section 207 of the Passenger Rail Investment and Improvement Act (“PRIIA”) unconstitutionally delegates legislative power to Amtrak. The Department of Transportation argues that section 207 is a constitutional delegation of power because the government maintains sufficient control over Amtrak and has the final say on any policy that Amtrak develops. The Association of American Railroads, however, argues that section 207 is not a constitutional delegation of power because Amtrak is a private entity with rulemaking authority. The Court’s ruling impacts the government’s accountability for Amtrak’s policies and the efficacy of the passenger rail market. 

Questions as Framed for the Court by the Parties

Section 207(a) of the Passenger Rail Investment and Improvement Act of 2008, Pub. L.

No. 110-432, Div. B, 122 Stat. 4916, requires that the Federal Railroad Administration (FRA) and Amtrak “jointly * * * develop” the metrics and standards for Amtrak’s performance that will be used in part to determine whether the Surface Transportation Board (STB) will investigate a freight railroad for failing to provide the preference for Amtrak's passenger trains that is required by 49 U.S.C. 24308(c) (Supp. V 2011). In the event that the FRA and Amtrak cannot agree on the metrics and standards within 180 days, Section 207(d) of the Act provides for the STB to “appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration.” 122 Stat. 4917. The question presented is whether Section 207 effects an unconstitutional delegation of legislative power to a private entity.

In 1970, Congress adopted the Rail Passenger Service Act of 1970 (“RPSA”), which was intended to aid in maintaining a national passenger railway system. See Assoc. of Am. Railroads v. United States Dept. of Transp., 721 F.3d 666, 668 (D.C. Cir.

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Acknowledgments

The authors would like to thank Professor Cynthia R. Farina for her perspective and insights on this case. 

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Direct Marketing Association v. Brohl

Issues

Does the Tax Injunction Act prohibit federal courts from hearing cases where a tax-exempt, out-of-state entity brings suit to challenge an in-state law that does not impose a tax on the exempt entity but does impose notice and reporting requirements?

The Supreme Court’s decision in this case will determine whether the Tax Injunction Act (“TIA”) prevents federal court review of the notice and reporting requirements imposed on tax-exempt entities through the Colorado Collection Act. The Direct Marketing Association argues that neither the TIA’s language nor Congress’s intent when writing the TIA support the proposition that the TIA bars federal court jurisdiction when a tax-exempt entity challenges a statute that imposes notice and reporting obligations on the entity but does not create an actual tax liability. Brohl counters that the TIA protects the notice and reporting obligations from federal review because those functions are essential to facilitate the collection of the use tax. The resolution of this case will implicate the role that federal courts have over state taxation matters.

Questions as Framed for the Court by the Parties

Whether the TIA bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration?

Colorado requires that all retailers pay a 2.9 percent tax on the sale of all tangible goods within the state. Direct Marketing Ass’n v. Brohl, 735 F.3d 904, 906 (10th Cir. 2013). The Commerce Clause and the Supreme Court’s decision in Quill Corp. v.

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Alabama Department of Revenue v. CSX Transportation, Inc.

Issues

Does a state discriminate against railroads when competing forms of commercial transportation are exempt from a diesel fuel tax that remains applicable to rail-based carriers?

This case presents the Supreme Court with an opportunity to resolve whether federal legislation to promote interstate commerce would override a state’s right to determine how to tax competing industries. The Alabama Department of Revenue (“ADR”) argues that state taxation is entitled to deference from the courts, so long as a state provides a justification for why its taxing plan for one industry differs from that of a competing industry. CSX Transportation, on the other hand, argues that the ADR’s differentiated tax plan is discriminatory when applied to its direct competitors, and that the tax plan therefore inhibits interstate commerce. This case will ultimately decide the extent of state discretion in designing state tax codes pertaining to different industries. 

Questions as Framed for the Court by the Parties

Whether a State “discriminates against a rail carrier” in violation of 49 U.S.C. §11501(b)(4) when the State generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads' competitors.

IN ADDITION TO THE QUESTION PRESENTED BY THE PETITION, THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE FOLLOWING QUESTION: “Whether, in resolving a claim of unlawful tax discrimination under 49 U.S.C. §11501(b)(4), a court should consider other aspects of the State’s tax scheme rather than focusing solely on the challenged tax provision.”

In 1976, Congress enacted the Railroad Revitalization and Regulatory Reform Act, known as the 4-R Act. Railroad Revitalization and Regulatory Reform Act, 49 U.S.C. § 11501. This act makes it illegal for a state to “impose a tax that discriminates against a rail carrier.” Id.

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Young v. United Parcel Service, Inc.

Issues

Does the Pregnancy Discrimination Act require employers who accommodate certain non-pregnant workers with work limitations to similarly accommodate pregnant workers?

The Supreme Court will have the opportunity to decide whether the Pregnancy Discrimination Act (“PDA”) requires employers who accommodate certain working limitations of non-pregnant workers to similarly accommodate pregnant workers. Young contends the PDA mandates that an employer must provide pregnant employees with the same accommodations that non-pregnant employees receive when non-pregnant employees are disabled or injured on-the-job. UPS, however, argues that the PDA requires no such accommodations. Additionally, while Young argues that UPS’s actions still constitute pregnancy discrimination under the McDonnell Douglas burden-shifting analysis, UPS maintains that its actions do not constitute pregnancy discrimination under the McDonnell Douglas test. The Supreme Court’s decision will likely impact the safeguards provided to women in the workplace and the efficiency of American businesses in providing such safeguards. 

Questions as Framed for the Court by the Parties

Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

In 1999, Respondent United Parcel Service, Inc. (“UPS”) hired Petitioner Peggy Sue Young. Young v. United Parcel Service, Inc., 707 F.3d 437, 440. In 2002, Young started driving UPS’s delivery trucks.

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Whitfield v. United States

Issues

Does a federal bank robbery statute’s forced-accompaniment offense require substantial movement of a victim?

The issue in this case is whether “accompany” should require de minimus or substantial movement of a victim for bank robberies tried in federal court. Whitfield argues that the federal bank robbery statute (18 U.S.C. § 2113(e)) should be interpreted as requiring substantial movement of the victim and that any broader interpretation of “accompany” would yield absurd results. The United States counters that “accompany” should be interpreted literally, and that any finding of accompaniment justifies the imposition of an additional conviction under § 2113(e). This case will impact the interpretation of “accompany” in the context of bank robberies, and may also impact the interpretation of statutes involving other crimes, such as kidnapping.

Questions as Framed for the Court by the Parties

A conviction under the federal bank robbery statute carries a maximum sentence of 20 years in prison, but no minimum sentence. 18 U.S.C. § 2113(a). If the bank robber forces another person “to accompany him” during the robbery or while in flight, however, that additional offense carries a minimum sentence of ten years in prison and a maximum sentence of life imprisonment. 18 U.S.C. § 2113(e).

The question presented is whether § 2113(e)’s forced-accompaniment offense requires proof of more than a de minimis movement of the victim. 

On September 26, 2008, Larry Whitfield and Quanterrious McCoy attempted an armed robbery of the Fort Financial Credit Union in Gastonia, North Carolina. See United States v. Whitfield, 695 F.3d 288, 292–93 (4th Cir. 2012). Whitfield and McCoy’s weapons triggered an alarm system that prevented them from entering the bank, so they fled in their car.

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Perez v. Mortgage Bankers Association (13-1041); Nickols v. Mortgage Bankers Association

Issues

Is a federal agency required to engage in notice-and-comment rulemaking before it can alter an interpretive rule that articulates an interpretation of the agency’s regulation?

The Supreme Court will consider whether a significant change in an interpretive rule issued by the Department of Labor (“Department”) requires the Department to undergo the notice-and-comment process. The Department, Secretary of Labor Perez, and Nickols argue that the APA explicitly exempts interpretative rules from the notice-and-comment process. However, the Mortgage Bankers Association (“MBA”) argues that when an agency issues new interpretation that substantially changes a prior definitive interpretation and has the force of law, the agency has in fact engaged in substantive or legislative rulemaking and must undergo the notice-and-comment. The Supreme Court’s decision in this case may affect the extent to which agencies are held accountable for significant changes in their policy interpretations and the agencies’ power to amend rules that are ineffective or reflect an outdated view of the agency. 

Questions as Framed for the Court by the Parties

Perez v. Mortgage Bankers Assn.

The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., generally provides that “notice of proposed rule making shall be published in the Federal Register,” 5 U.S.C. 553(b), and, if such notice is required, the rulemaking agency must give interested persons an opportunity to submit written comments, 5 U.S.C. 553(c). The APA further provides that its notice-and comment requirement “does not apply * * * to interpretative rules,” unless notice is otherwise required by statute. 5 U.S.C. 553(b) (A). No other statute requires notice in this case. The question presented is:

Whether a federal agency must engage in notice-and-comment rulemaking before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.

Nickols v. Mortgage Banker Assn.

The Administrative Procedure Act, 5 U.S.C. §§ 551-59, “established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.” Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524 (1978). Section 553 of the Act sets forth notice-and-comment rulemaking procedures, but exempts “interpretative rules,” among others, from the notice-and-comment requirement. 5 U.S.C. § 553(b). The D.C. Circuit, in a line of cases descending from Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997), has created a per se rule holding that although an agency may issue an initial interpretative rule without going through notice and comment, “[o]nce an agency gives its regulation an interpretation, it can only change that interpretation as it would formally modify the regulation itself: through the process of notice and comment rulemaking.” Id. at 586. In this case, the D.C. Circuit invoked the Paralyzed Veterans doctrine-which is contrary to the plain text of the Act, numerous decisions of this Court, and the opinions of the majority of circuit courts-to invalidate a Department of Labor interpretation concluding that mortgage loan officers do not qualify for the administrative exemption under the Fair Labor Standards Act.

The question presented is: 

Whether agencies subject to the Administrative Procedure Act are categorically prohibited from revising their interpretative rules unless such revisions are made through notice-and- comment rulemaking.

Under the Fair Labor Standards Act (“FLSA”), Congress established federal overtime guarantees for employees who work more than forty hours per week. See Mortgage Bankers Association v. Harris (“Harris”), 720 F.3d 966, 968 (D.C. Cir. 2013). At the same time, the FLSA exempts certain employees from its overtime requirements, including those “employed in a bona fide executive, administrative, or professional capacity[,] . . .

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Acknowledgments

The authors would like to thank Professor Cynthia Farina of Cornell Law School for her helpful insight into the issues of this case.

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Hana Financial v. Hana Bank

Issues

Is trademark tacking an issue of law or fact?

The Supreme Court will have the opportunity to address the issue of whether trademark tacking is a question of law or fact. In this case, Hana Bank argues that its use of “Hana Overseas Korean Club” should be tacked to its use of “Hana World Center”—as the district court jury seemingly allowed. Hana Financial counters, argues that a judge, not a jury, should decide the tacking issue; and, Hana Bank’s tacking claim fails as a matter of law. The outcome of this case may touch on judicial efficiency, predictability of trademark law, and consumer protection. 

Questions as Framed for the Court by the Parties

To own a trademark, one must be the first to use it; the first to use a mark has “priority.”  The trademark “tacking” doctrine permits a party to “tack” the use of an older mark onto a new mark for purposes of determining priority, allowing one to make slight modifications to a mark over time without losing priority. Trademark tacking is available where the two marks are “legal equivalents.” The question presented, which has divided the courts of appeals and determined the outcome in this case, is:

Whether the jury or the court determines whether use of an older trademark may be tacked to a newer one is a question of fact?

In the mid-1990s two companies began providing financial services in the United States. See Hana Financial, Inc. v Hana Bank, 735 F.3d 1158, 1161 (9th Cir.

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Elonis v. United States

Issues

Does a conviction for threatening another person in interstate communications require proof of the defendant’s subjective intent to threaten and, if not, does the First Amendment prevent a conviction based only on a showing that a reasonable person would regard the statement as threatening?

The Supreme Court granted certiorari to address a circuit split on the question of whether the 18 U.S.C. § 875(c) (“§ 875(c)”) requires a showing of subjective intent in order to convict and, if not, whether conviction based only on a showing that a reasonable person would regard the statement as threatening violates the First Amendment. In this case, Anthony D. Elonis was convicted for publishing a series of Facebook posts describing committing acts of violence towards various people in violation of § 875(c). Elonis contends that the government must offer proof of a subjective intent to threaten, and that his speech is protected by the First Amendment. The United States, however, argues that § 875(c) requires only proof of general intent and that threats as defined in § 875(c) should not receive First Amendment protection. The Supreme Court’s ruling in this case could affect free speech rights as well as the rights of those who are victims of threats.

Questions as Framed for the Court by the Parties

It is a federal crime to “transmit[] in interstate or foreign commerce any communication containing * * * any threat to injure the person of another,” 18 U.S.C. § 875(c). Numerous states have adopted analogous crimes. The question presented is:

Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

IN ADDITION TO THE QUESTION PRESENTED BY THE PETITION, THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE FOLLOWING QUESTION: “Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. §875(c) requires proof of the defendant’s subjective intent to threaten.”

Anthony D. Elonis was indicted with five counts of making threats in violation of 18 U.S.C. § 875(c) (“§ 875(c)”). United States v. Elonis, 730 F.3d 321, 327 (3rd Cir. 2013). Section 875(c) provides that it shall be illegal to transmit “in interstate or foreign commerce any communication containing . . .

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B&B Hardware, Inc. v. Hargis Indus., Inc.

Issues

Does the Trademark Trial and Appeal Board’s (“TTAB”) likelihood-of-confusion determination have a preclusive effect in a trademark infringement claim; or, alternatively, should federal courts defer to the TTAB’s findings on likelihood-of-confusion absent strong evidence to rebut the finding?

The Supreme Court’s decision in this case will determine whether a Trademark Trial and Appeal Board (“TTAB”) likelihood-of-confusion finding has preclusive effect in a subsequent trademark-infringement claim. If the Court finds that issue preclusion does not apply, the Court will address whether federal courts should defer to the TTAB’s likelihood-of-confusion determination in the absence of strong contrary evidence. B&B Hardware argues that the concept of “likelihood of confusion” has the same meaning in both TTAB and federal court proceedings and applies equally to both trademark-registration proceedings and trademark-infringement actions. Hargis Industries counters that preclusion is inapplicable because TTAB administrative decisions are not binding on Article III courts. The Court’s ruling will have significant implications for judicial efficiency in TTAB infringement cases before both the TTAB and federal courts, and will potentially also impact consumer confidence in trademarks. 

Questions as Framed for the Court by the Parties

  1. Whether the TTAB’s finding of a likelihood of confusion precludes Hargis from relitigating that issue in infringement litigation, in which likelihood of confusion is an element.
  2. Whether, if issue preclusion does not apply, the district court was obliged to defer to the TTAB’s finding of a likelihood of confusion absent strong evidence to rebut it.

For over fifteen years, B&B Hardware, Inc. (“B&B”), doing business as Sealtight Technology, and Hargis Industries, Inc. (“Hargis”), doing business as Sealtite Building Fasteners, have been involved in trademark litigation over the similarity of their marks. See B&B Hardware, Inc. v.

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