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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T-Mobile South v. City of Roswell

Issues

Does a letter from a local government denying an application to construct a cell tower without providing reasons for the denial, but offering the minutes of the meeting denying the application, satisfy the “in writing” requirement of the Telecommunications Act of 1996?

In this case, the Supreme Court will address whether the Telecommunications Act of 1996 (“1996 Act”) requires State or local governments that deny an application to construct a new cell tower to provide clear reasons for the decision in the same written document as the denial. Citing the statute’s text, purpose, and legislative history, T-Mobile argues that the City of Roswell violated the 1996 Act when it denied T-Mobile’s permit application but did not provide a clear statement of reasons for the denial. The City of Roswell argues that the 1996 Act merely requires that a state or local government provide the denial “in writing,” regardless of whether the reasons for the denial appear in a separate written record. The Supreme Court’s decision will likely have significant implications for the future of wireless deployment and judicial review of state and local resistance to wireless telecommunications services. The Court’s decision may also impact economic growth and public safety. 

Questions as Framed for the Court by the Parties

In order to promote the prompt deployment of telecommunications facilities and to enable expedited judicial review, the Communications Act of 1934, as amended by the Telecommunications Act of 1996, provides that any decision by a state or local government denying a request to place, construct, or modify a personal wireless service facility “shall be in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332 (c)(7)(B)(iii).

The question presented is whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy this statutory “in writing” requirement.

In 2003, the Respondent City of Roswell, Georgia (“City”) enacted an ordinance (Roswell City Ordinance 21.2) governing the standards for wireless communication towers. T-Mobile South LLC v.

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  • Seth L. Cooper: States Can Promote Next-Generation Wireless by Removing Regulatory Barriers, American Legislator (Apr. 3, 2014).
  • Brian Heaton: U.S. Supreme Court to Decide Key Cell Tower Siting Case, Government Technology (May 29, 2014).
  • Brent Kendall: Supreme Court to Hear T-Mobile Cell-Tower Case, The Wall Street Journal (May 5, 2014).
  • Matthew Schettenhelm: Is a Local Government’s Decision in Writing? The U.S. Supreme Court To Rule, Best Best & Krieger, LLP (July 29, 2014).
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M&G Polymers USA, LLC v. Tackett

Issues

In determining whether retiree health-care benefits provided under collective bargaining agreements should continue indefinitely, how should courts interpret collective bargaining agreements that are silent on the duration of retiree health-care benefits?

When interpreting a collective bargaining agreement that is silent on the duration of retiree health-care benefits, the Sixth Circuit inferred that the health-care benefits are vested (and therefore continue indefinitely). This approach, however, differs from the interpretative approach of other federal appellate courts. The Supreme Court will now resolve this circuit split. M&G Polymers USA, LLC argues that health-care benefits should terminate when the collective bargaining agreement ends unless there is a clear and explicit statement that such benefits should continue indefinitely. In opposition, several M&G retirees argue that, notwithstanding contractual silence, the parties’ intent that health-care benefits should continue indefinitely can be presumed. The resolution of this case will impact both the retention of retiree health-care benefits and the operational costs of American companies. 

Questions as Framed for the Court by the Parties

  1. Whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold.
  2. Whether, as the Sixth Circuit has held in conflict with the Second, Third, and Seventh Circuits, different rules of construction should apply when determining whether health-care benefits have vested in pure ERISA plans versus collectively bargained plans.

In 1992, Shell Chemical Company (“Shell”) purchased a West Virginia polyester plant from The Goodyear Tire & Rubber Company (“Goodyear”). See Tackett v. M & G Polymers USA, LLC, 733 F.3d 589, 593 (6th Cir. 2013).

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Maryland State Comptroller of the Treasury v. Wynne

Issues

Does a state tax scheme violate the United States Constitution by taxing all resident income earned in-state and out-of-state and requiring residents to take out a credit against taxes paid on income earned in other states?

In this case, the Supreme Court will have the opportunity to address whether a state may tax its residents’ out-of-state income where the state in which the resident earned the income has already taxed the resident’s income earned in that state. The Maryland State Comptroller of the Treasury claims that the Supreme Court has recognized a state’s right to tax all of its residents’ income, whether earned inside or outside of the state, and even where the result is multiple taxation of the same income. Notwithstanding that, the Wynnes argue that Maryland’s tax scheme unduly burdens interstate commerce—and thereby violates the Commerce Clause—because it does not offset that multiple taxation through a credit, or otherwise. The Court’s ruling will determine the constitutionality of so-called “double taxation” schemes in light of a state’s sovereign power to tax its residents as well as constitutional requirements against discriminatory tax schemes.

Questions as Framed for the Court by the Parties

Does the United States Constitution prohibit a state from taxing all the income of its residents-wherever earned-by mandating a credit for taxes paid on income earned in other states?

In 2006, Respondents Brian and Karen Wynne owned 2.4% of the stock in Maxim Healthcare Services, Inc. (“Maxim”), a national healthcare services company classified as an S corporation in Maryland. See Maryland State Comptroller of the Treasury v. Wynne, 431 Md. 147, 158 (Md. Ct. App.

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Alabama Legislative Black Caucus v. Alabama; Alabama Democratic Conference v. Alabama (Consolidated)

Issues

  1. Does Alabama’s legislative redistricting plan violate the Equal Protection Clause because its drafters attempted to maintain black voting population percentages in order to comply with Section 5 of the Voting Rights Act?
  2. Does the Alabama Democratic Conference have standing to challenge the constitutionality of Alabama’s redistricting plan?

The Supreme Court’s decision in this case will likely clarify the extent that state redistricting plans may take race into consideration when trying to comply with the Voting Rights Act or the Constitution. The Alabama Legislative Black Caucus and the Alabama Democratic Conference allege that Alabama’s 2012 redistricting plan impermissibly focused on race in drawing new district lines. Alabama responds that the 2012 redistricting plan’s primary motivations were compliance with the Constitution’s requirement of “one person, one vote” and prevention of retrogression under the Voting Rights Act. The resolution of this case will likely address the role courts play in policing redistricting plans enacted by state legislatures.

Questions as Framed for the Court by the Parties

No. 13-895

Whether Alabama’s legislative redistricting plans unconstitutionally classify black voters by race by intentionally packing them in districts designed to maintain supermajority percentages produced when 2010 census data are applied to the 2001 majority-black districts.

No. 13-1138

This appeal in a legislative redistricting case presents issues of law in regard to how a State may rely on race in setting district boundaries. It is undisputed that the State had, among its chief goals, the idea that when possible it would redraw each majority--black district to have the same percentage of black population as the district would have had using 2010 census data as applied to the former district lines. This goal, particularly when combined with the new goal of significantly reducing population deviation among districts, led the State to stark racial intentionality in district-drawing, packing more super-majorities of black voters into already-majority-black districts, without regard to whether such efforts were actually necessary in each district to allow black voters to elect candidates of their choice. A divided three-judge District Court rejected the challenge to this map. This appeal presents issues summarized as follows:

a. Whether, as the dissenting judge concluded, this effort amounted to an unconstitutional racial quota and racial gerrymandering that is subject to strict scrutiny and that was not justified by the putative interest of complying with the non-retrogression aspect of Section 5 of the Voting Rights Act?

b. Whether these plaintiffs have standing to bring such a constitutional claim?

After the 2010 census revealed malapportionment in most electoral districts in Alabama, the Republican-controlled Alabama legislature declared that compliance with the Constitution’s mandate of “one person, one vote” would be its highest priority in creating new district lines in 2012.

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Zivotofsky v. Kerry

Issues

Does a federal statute that directs the Secretary of State, upon an American citizen’s request, to record the birthplace of an American citizen born in Jerusalem as born in “Jerusalem, Israel” on a United States passport and on a Consular Report of Birth Abroad infringe upon the President’s authority to recognize foreign states and governments?

When the United States does not have an official position regarding which country controls a city, United States passports will list the city of birth but not a country of birth. The Supreme Court will now determine two legal issues: (1) whether Foreign Relations Authorization Act’s Section 214(d) is an exercise of regulating the issuance of passports or an exercise of recognizing foreign nations; and (2) if Section 214(d) is an act of recognition, whether the President has exclusive authority to recognize foreign nations. Zivotofsky argues that Section 214(d) is a constitutional exercise of Congress’ power to regulate the issuance of passports and also contends that the Constitution does not vest exclusive recognition authority in the President. The Secretary of State argues that Section 214(d) is a constitutional exercise of the President’s power to recognize foreign nations and also contends that the Constitution vests exclusive recognition authority in the President. The Supreme Court’s decision could affect U.S. foreign policy and the allocation of powers between the legislative and executive branches.

Questions as Framed for the Court by the Parties

Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute “impermissibly infringes on the President’s exercise of the recognition power reposing exclusively in him.”

Due to the Arab-Israeli conflict, the "political status of Jerusalem has been in dispute since 1948." Zivotofsky v. Sec’y of State, 511 F.Supp. 2d 97, 100 (D.D.C. 2007). As part of peacekeeping efforts, the United States government does not recognize Jerusalem as belonging to any sovereign nation.

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Yates v. United States

Issues

Does the term “tangible objects” in 18 U.S.C. § 1519 encompass all physical objects, including fish, or only those objects that are meant to preserve information?

In this case the Supreme Court will address whether the term “tangible objects” in 18 U.S.C. § 1519 encompasses more than objects that preserve information—specifically whether it includes fish. Section 1519 criminalizes destroying or concealing a “tangible object with the intent to impede, obstruct, or influence” a government investigation. While Yates encourages the Court to look at the statutory language surrounding “tangible objects” and argues that fish are not “tangible objects” within the meaning of the statute, the government contends that “tangible objects” is an unambiguous term that applies to all objects, including fish. The Court’s ruling will implicate the reach of federal law, statutory interpretation, and the notice requirement of the Fourteenth Amendment. 

Questions as Framed for the Court by the Parties

In the wake of the criminal charges filed against Enron's corporate officers, Congress passed the Sarbanes-Oxley Act of 2002. Known as the “anti-shredding provision” of the Act, 18 U.S.C. § 1519 makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object’ with the intent to impede or obstruct an investigation. 18 U.S.C. § 1519 (emphasis supplied). John L. Yates, a commercial fisherman, was charged and convicted under this anti-shredding criminal statute for destroying purportedly undersized, harvested fish from the Gulf of Mexico after a federally-deputized officer had issued him a civil citation and instructed him to bring them back to port.

This petition presents the important question of whether the reach of section 1519 extends to the construction of anything meeting the dictionary definition of “tangible objects,” or instead is limited to the destruction of tangible objects related to record-keeping as follows:

Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose?

On August 23, 2007, Petitioner John Yates and his crew were actively engaged in fishing aboard their vessel when Officer John Jones (“Officer Jones”) of the Florida Fish and Wildlife Conservation Commission approached for an inspection. See United States v. Yates, 733 F.3d 1059, 1061 (11th Cir. 2013).

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Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund

Issues

Does Section 11 of the Securities Act of 1933 require a showing that an opinion contained in a registration statement was objectively wrong and subjectively false? 

The Supreme Court will decide whether, in a Section 11 claim, an opinion itself can be a misleading or untrue material fact if objectively wrong, or if a plaintiff must also show that the speaker did not subjectively believe the stated opinion. While Omnicare argues that an opinion is actionable only when subjectively wrong, Laborers District Counsel Construction Industry Pension Fund contends that an objectively wrong statement qualifies as misleading under Section 11 of the Securities Act of 1933. This decision will affect the liability stock issuers have in connection with public offerings and could potentially affect underwriters’ willingness to finance securities. 

Questions as Framed for the Court by the Parties

Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, provides a private remedy for a purchaser of securities issued under a registration statement filed with the Securities and Exchange Commission if the registration statement “contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statement therein not misleading.” Against that statutory backdrop, this case presents the following question:

For purposes of a Section 11 claim, may a plaintiff plead that a statement of opinion was “untrue” merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or must the plaintiff also allege that the statement was subjectively false—requiring allegations that the speaker’s actual opinion was different from the one expressed—as the Second, Third, and Ninth Circuits have held?

Petitioner Omnicare is a large pharmaceutical care services provider operating in Canada and the United States. See Ind. State Dist. Council, et al. v. Omnicare, Inc., et al., 719 F.3d 498, 500 (6th Cir. 2013). Omnicare engaged in a public offering of securities on December 15, 2005 where it offered 12.8 million shares of common stock.

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Acknowledgments

The authors would like to thank Professor Charles K. Whitehead for his advice and assistance with this preview. 

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Johnson v. United States

Issues

Is possession of a short-barreled shotgun a violent felony under the Armed Career Criminal Act?

The Supreme Court will consider whether possession of a short-barreled shotgun can be considered a violent felony for purposes of the Armed Career Criminal Act (“ACCA”). Johnson argues that possession alone of a short-barreled shotgun is not inherently violent, unlike the other violent felonies listed in the ACCA. The United States asserts that possession of a short-barreled shotgun is a violent felony because the possession of a dangerous weapon greatly increases the likelihood that a possessor will injure or kill others. The Court’s ruling implicates the law of sentencing enhancements, the classification of violent felonies, and the scope of the ACCA. 

Questions as Framed for the Court by the Parties

Whether the mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act?

The Federal Bureau of Investigation started investigating Samuel James Johnson’s participation in the Aryan Liberation Movement (“Movement”) in 2010. See United States v. Johnson, No. 12-3123, 2013 WL 3924353, at *1 (8th Cir. 2013). Johnson intended to counterfeit United States currency in order to support the activities of the Movement.

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Acknowledgments

The authors would like to thank Professor Jens Ohlin from Cornell Law School for his insights into this case.

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Jesinoski v. Countrywide Home Loans

Issues

May a borrower simply provide written notice to a creditor to exercise a statutory right to rescind a home-secured loan under the Truth In Lending Act, or must the borrower file a lawsuit to exercise that right?

This case presents the Supreme Court with an opportunity to determine the procedural requirements for exercising the right to rescission under the Truth In Lending Act (“TILA”). The Jesinoskis argue that if a creditor fails to strictly comply with TILA’s terms, then borrowers only need to provide written notice in order to rescind a loan any time within a three-year period. Meanwhile, Countrywide maintains that any rescission occurring after the first three days of the loan requires a lawsuit if the rescission is contested by the creditor. This case ultimately will determine who bears the cost of litigation in rescinding home-secured loans, and also determines the scope of TILA’s protection for borrowers.

Questions as Framed for the Court by the Parties

The Truth in Lending Act provides that a borrower “shall have the right to rescind the transaction until midnight of the third business day following . . . the delivery of the information and rescission forms required under this section ... by notifying the creditor ... of his intention to do so.” 15 U.S.C. § 1635(a). The Act further creates a “[t]ime limit for [the] exercise of [this] right,” providing that the borrower’s “right of rescission shall expire three years after the date of consummation of the transaction” even if the “disclosures required ... have not been delivered.” Id. § 1635(f). 

The question presented is: 

Does a borrower exercise his right to rescind a transaction in satisfaction of the requirements of Section 1635 by “notifying the creditor” in writing within three years of the consummation of the transaction, as the Third, Fourth, and Eleventh Circuits have held, or must a borrower file a lawsuit within three years of the consummation of the transaction, as the First, Sixth, Eighth, Ninth, and Tenth Circuits have held?

On February 23, 2007, Larry and Cheryle Jesinoski refinanced their home for a $611,000 loan from Countrywide Home Loans. See Jesinoski v. Countrywide Home Loans, Inc., No. 11-cv-0474-DWF-FLN, 2012 WL 1365751, at *1 (D. Minn. Apr. 19, 2012).

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Acknowledgments

The authors would like to thank Professor Cynthia Farina for her guidance.

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