Getting Arrested Checklist: Have My Rights Been Violated?

Persons accused of committing a crime have a series of rights, some of which are guaranteed by the U.S. Constitution and some of which are guaranteed for other reasons. If you have been accused of a crime, how can you know if your rights have been violated? While an experienced criminal law attorney can answer that question, the following checklist of rights may also provide you with guidance.

____ I was allowed to remain silent: One of the most important rights of a person accused of a crime is the right to remain silent. You cannot be forced to divulge information to the police. This right stems from the Fifth Amendment right against self-incrimination. In other words, you are not required to prove your case for the police. They are responsible for developing the evidence to prove you have in fact committed a crime. The right to remain silent was confirmed in the U.S. Supreme Court case of Miranda v. Arizona. If you attempted to remain silent in the face of police questioning, and were coerced or forced into speaking, your rights have been violated.
____ I was told that anything I chose to say can be used against me: The police must inform you that if you chose to speak, “anything you do say may be used against you in a court of law.” If you were told that you had the right to remain silent, but were not informed of the consequences of choosing to speak, your rights may have been violated.
____ I was allowed to have an attorney present when I requested one: Another absolute right of a person under arrest for a crime is the right to have an attorney present during questioning and the right to have counsel during any trial. If you requested an attorney during questioning, and the police denied you that request, your rights may have been violated.
____ I was not asked questions while my attorney was absent: Once you request the assistance of an attorney, the police are prohibited from questioning you later without your attorney. In other words, you have the right to have an attorney present during the first, and any subsequent, talks with the police.
____ I was not forced to pay for my attorney’s services: Just as you are entitled to have an attorney, you are also entitled to a state-paid and appointed attorney if you can not afford your own attorney per a state’s or county’s guidelines. If you fall within this category, you will be assigned a public defender to represent you.
____ Although I initially didn’t ask for an attorney, when I asked for one later in my questioning, questioning stopped and didn’t start again until my attorney arrived: In many situations, criminal suspects may have false confidence that they can handle the matter on their own, without the assistance of an attorney. A criminal suspect who decides to answer police questions without an attorney present still has the right to ask for an attorney at any later point. Once a suspect asks for an attorney, all questioning must stop until the attorney arrives.
____ I was treated humanely: Unfortunately, police brutality and unfair treatment continue to occur in the United States. A criminal suspect is entitled to humane treatment, no matter how heinous the alleged crime. If you were not treated humanely, for instance if you were deprived of food and water or if you were beaten either during police questioning or while in a holding cell, your rights may have been violated.
____ I was not held unfairly: The government cannot hold you for an extended period of time without charging you with a crime. For instance, if you are placed in a holding cell under suspicion of murder, the government must officially charge you with that crime within a specified period of time. In some states, a charge must be brought within forty-eight hours; in other states the time limit is different. If you have been held without being charged for longer than the legal amount of time, your rights may have been violated.
____ I was not treated as guilty before convicted: Criminal suspects being held in jail awaiting trial may not be treated as guilty individuals before they have actually been convicted, no matter how strong the evidence is against them. The cornerstone of the U.S. criminal justice system is the belief that all people are innocent until proven guilty. If you were punished or treated unfairly while awaiting trial, your rights may have been violated.
____ I was given a speedy trial: You are also entitled to what is called a “speedy trial.” In other words, once you are charged the government cannot purposefully drag its feet and wait to commence a trial against you. If it does, your rights may have been violated.
____ I was not subjected to “cruel and unusual punishment” while imprisoned: The Eighth Amendment to the U.S. Constitution guarantees that prisoners must be free from “cruel and unusual punishment.” Once you have been convicted of a crime and incarcerated, you must be treated in a manner that does not constitute “cruel and unusual” punishment. Therefore, any punishment that can be considered inhumane treatment or which violates the basic concept of a person?s dignity may be found to be cruel and unusual. For example, your rights may have been violated if you were given only dirty water to drink while incarcerated, or if the condition of your cell was unsanitary.

Civil Rights and Discrimination: U.S. Supreme Court Decisions

Following is a list of U.S. Supreme Court decisions involving civil rights and discrimination.

  • Dred Scott v. Sanford (1856) | (Case Background)
    A major precursor to the Civil War, this controversial U.S. Supreme Court decision denied citizenship and basic rights to all blacks — whether slave or free.
  • Plessy v. Ferguson (1896)
    This decision allowed the use of “separate but equal” racially segregated accommodations and facilities.
  • Korematsu v. U.S. (1944)
    The Court in this case upheld the conviction of an American of Japanese descent, who had been prosecuted for remaining in California after a 1942 presidential order designating much of the west coast a “military area”, and requiring relocation of most Japanese-Americans from California (among other west coast states)
  • Shelley v. Kraemer (1948)
    This decision held that “racially restrictive covenants” in property deeds are unenforceable. In this case, the “covenants” were terms or obligations in property deeds that limited property rights to Caucasians, excluding members of other races.
  • Bailey v. Patterson (1962)
    The Court in this case prohibited racial segregation of interstate and intrastate transportation facilities.
  • Gideon v. Wainwright (1963)
    In this case, the Court found that criminal defense attorneys must be provided for indigent criminal defendants.
  • Loving v. Virginia (1967)
    This decision holds that state laws prohibiting inter-racial marriage are unconstitutional.
  • Jones v. Mayer Co. (1968)
    The Court held in this case that federal law bars all racial discrimination (private or public), in sale or rental of property.
  • Griggs v. Duke Power Co. (1971)
    In this case, the Court decided that certain education requirements and intelligence tests used as conditions of employment acted to exclude African-American job applicants, did not relate to job performance, and were prohibited.
  • Lau v. Nichols (1973)
    The Court found that a city school system’s failure to provide English language instruction to students of Chinese ancestry amounted to unlawful discrimination.
  • Roe v. Wade (1973)
    In this landmark case, the Court decided that a woman’s right to abortion is part of the constitutional right to privacy.
  • Cleveland Bd. of Ed. v. LaFleur (1974)
    Found that Ohio public school mandatory maternity leave rules for pregnant teachers violate constitutional guarantees of due process.
  • Batson v. Kentucky (1986)
    This decision holds that a state denies an African-American defendant equal protection when it puts him on trial before a jury from which members of his race have been purposefully excluded.
  • Bowers v. Hardwick (1986)
    The Court holds that a Georgia statute criminalizing same-sex sodomy is constitutional.
  • Johnson v. Transportation Agency (1987)
    The Court decides that a county transportation agency appropriately took into account an employee’s sex as one factor in determining whether she should be promoted.
  • Oncale v. Sundowner Offshore Serv., Inc. (1987)
    In this case, the Court held that sex discrimination consisting of same-sex sexual harassment can form the basis for a valid claim under Title VII of the Civil Rights Act of 1964.
  • Franklin v. Gwinnett County Public Schools (1992)
    The Court decided that an award of money damages is possible in a case brought to enforce Title IX of the Education Amendments of 1972, alleging sexual harassment and abuse by a teacher.
  • Romer v. Evans (1996)
    In this case, the Court finds that an amendment to Colorado’s constitution, which sought to preclude legal protection of homosexuals’ rights, is unconstitutional.
  • Bragdon v. Abbott (1998)
    The Court holds that HIV infection qualifies as a disability under the Americans with Disabilities Act (ADA).
  • Burlington Industries, Inc. v. Ellerth (1998)
    Holding that an employee who refuses unwelcome and threatening sexual advances of a supervisor (but suffers no real job consequences) may recover against the employer without showing the employer is at fault for the supervisor’s actions.
  • Faragher v. City of Boca Raton (1998)
    The Court decides that an employer may be liable for sexual discrimination caused by a supervisor, but liability depends on the reasonableness of the employer’s conduct, as well as the reasonableness of the plaintiff victim’s conduct.
  • Murphy v. United Parcel Service, Inc. (1999)
    In this case, the Court explains how to determine whether an impairment “substantially limits” a major life activity under the Americans with Disabilities Act (ADA).
  • Lawrence v. Texas (2003)
    The Court holds that a Texas statute criminalizing same-sex conduct is unconstitutional.
  • Grutter v. Bollinger (2003)
    In this case, the Court finds that a law school’s limited “affirmative action” use of race in admissions is constitutional.

Civil Rights in Education: Law and History

Title IV of the Civil Rights Act of 1964 prohibits discrimination in public schools because of race, color, religion, sex, or national origin. Public schools include elementary schools, secondary schools and public colleges and universities.

In 1954, the Supreme Court ruled in Brown v. Board of Education that segregation in the public schools was a violation of the Fourteenth Amendment to the Constitution. But implementation of the Court’s decision went slowly, with massive resistance from the states. In 1957, a federal court ordered the desegregation of public schools in Little Rock, Arkansas. The Governor of Arkansas, Orval Faubus, ordered the Arkansas National Guard to prevent the 9 black children who were enrolled in Central High School from attending the school. Mobs of angry people greeted the students on the first day of school. These students were prevented from attending the school until President Eisenhower made the National Guard part of the federal army and also sent 1,000 paratroopers of the 101st Airborne Division of the US Army to protect these 9 children. In September 1958, Governor Faubus closed all the schools in Little Rock to prevent any more black children from attending white schools. The schools remained closed until August 1959, when the U.S. Supreme Court ordered them re-opened.

In January 1961, James Meredith, an African-American, applied for admission to the University of Mississippi. Officials at the school returned his application. Mr. Meredith took his case to court. On September 10, 1962, the U.S. Supreme Court ruled that he had the right to attend the University of Mississippi. The Governor of Mississippi, Ross Barnett, personally blocked Mr. Meredith from registering at the University even after the Supreme Court ruled. Finally, on September 30, 1962, a Sunday, Mr. Meredith was escorted onto the campus by federal marshals and Civil Rights Division lawyers. Stationed on or near the campus to protect him were 123 deputy federal marshals, 316 US Border Patrolmen, and 97 federal prison guards. Within an hour, the federal forces were attacked by a mob that would grow to number 2,000 and who fought them with guns, bricks, bottles, and Molotov cocktails. The marshals had been ordered not to shoot and so used tear gas to try to stop the rioting. The violence continued until President Kennedy sent 16,000 federal troops to the campus. When it was over, 2 people were dead, 28 marshals had been shot, 160 people were injured, and James Meredith became the first black student to attend the University of Mississippi.

“Supreme Court Decision Limits Use of “Stream of Commerce” Jurisdiction Theory to Subject Foreign Manufacturers to Suit in the U.S.” – Litigation Alert

At the end of its recent term, the United States Supreme Court decided J. McIntyre Machinery, Ltd. v. Nicastro (Case No. 09-1343, June 27, 2011). In McIntyre Machinery, the Court reversed a decision by the Supreme Court of New Jersey, finding that the New Jersey courts improperly asserted jurisdiction over an English machinery manufacturer in a product liability suit brought by an individual who was injured while using the manufacturer’s product in New Jersey.

The facts of the case are as follows: The defendant, McIntyre Machinery, is an English company that manufactures metal shearing devices used in the scrap metal industry. The plaintiff, Robert Nicastro, was severely injured while using a McIntrye shear in New Jersey. McIntyre sold its machines through an independent U.S. distributor, not controlled by McIntyre and not located in New Jersey. The distributor, however, followed McIntyre’s direction and guidance whenever possible. McIntyre officials also attended trade shows in the U.S., but not in New Jersey. McIntyre held U.S. and European patents on the machine. McIntyre generally desired to sell machines in the U.S., but there was no showing that New Jersey was targeted for sales, by advertising or otherwise. There was some evidence suggesting that as many as four McIntyre machines were located in New Jersey.

On these facts, six Justices of the Court agreed that the assertion of personal jurisdiction over McIntyre Machinery in New Jersey was improper. The six Justices did not agree on their reasoning. Justice Kennedy wrote the plurality opinion, joined by Chief Justice Roberts, Justice Scalia and Justice Thomas. Justice Breyer, joined by Justice Alito, concurred in the judgment. Justice Ginsburg dissented, joined by Justice Sotomayor and Justice Kagan.

The plurality stressed that the exercise of personal jurisdiction under the Due Process Clause of the Constitution generally depends on the defendant having purposefully availed itself of the privilege of doing business in the forum state, thus invoking the benefits and protections of its laws. Product liability cases, the plurality wrote, fall within this general rule. The plurality specifically rejected the notion that placing products in the stream of commerce in a manner such that it is foreseeable they will end up in a particular state is not enough: “The defendant’s transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.” (Slip Op. at 7). Further, although the facts showed a general intent by McIntyre to serve the U.S. market, “they do not show that J. McIntyre purposefully availed itself of the New Jersey market.”

In the concurring opinion, Justice Breyer stated that he did not believe it was appropriate to use the facts of this case to set strict rules. He noted that the case does not “implicate modern concerns” (such as targeting the world for sales by selling on the Internet). Justice Breyer supported the view that a single isolated sale in a state is not enough, and that “something more” is required than simply putting a product in the stream of commerce with knowledge that it may be swept into the forum state. Justice Breyer also stressed his view that due process requirements, including “purposeful availment,” rest upon a notion of “defendant-focused fairness.” Such considerations may vary when comparing a large national manufacturer to a small manufacturer selling a small number of products through a distributor. “Further, the fact that the defendant is a foreign, rather than a domestic, manufacturer makes the basic fairness of an absolute rule yet more uncertain.” (Breyer J., concurring, Slip. Op. at 6).

McIntyre Machinery is important because it limits the grounds for U.S. courts asserting personal jurisdiction against foreign manufacturers. In this context, “foreign” means out-of-state manufacturers as well as international companies. Six of the nine Justices clearly indicated that the simple fact that a product has found its way into a jurisdiction is not enough to establish jurisdiction over a non-resident manufacturer even though the manufacturer realizes that the product might end up in the state. The case will likely lead lower courts to dismiss certain cases which would otherwise have remained in court. Because of the fractured nature of the decision, however, its overall significance remains to be seen. Issues of personal jurisdiction will remain highly dependent on the facts of a particular case.

U.S. Supreme Court Extends “Public Concern” Test To Lawsuits Brought By Public Employees Under The First Amendment’s Petition Clause

The U.S. Supreme Court Has provided some much needed guidance on when public employers may violate their employees’ right to petition the government for redress of grievances under the First Amendment.  In order to prove that the government violated his rights under the Petition Clause of the First Amendment, a public employee must now show that his petition related to a matter of “public concern,” as opposed to a private employment grievance.  This standard is substantially the same as the test applied under the Free Speech Clause of the First Amendment.

Writing for six other justices in Borough of Duryea, Pennsylvania v. Guarnieri, Justice Kennedy explained that while courts should not presume that there is always an equivalence between the Speech Clause and the Petition Clause, there is “extensive common ground in the definition and delineation” of the rights protected by the respective clauses justified extending the same “public concern” test to both the exercise of free speech by public employees and their right to petition the government.

The public concern test was first developed to protect the “substantial government interest” in preventing government employees from “constitutionaliz[ing]” the employee grievance process. [and clogging the court system with internal government matters]. Because public employees could readily bring the same claim under either the Speech or Petition Clauses, the Court reasoned that adopting a lower standard for claims brought under the Petition Clause would provide public employees a “ready means…to circumvent the [public concern] test’s protections.” However, the Court explicitly stated that this analysis only applies when a public employee is acting in his capacity as an employee. Rather, “[w]hen a public employee seeks to participate, as a citizen, in the process of deliberative democracy, either though speech or petition, it is necessary to regard the employee as the member of the general public he seeks to be.”

The Court’s full opinion can be found at:  read more

Split Decision: U.S. Appellate Court Finds Health Reform Law is Constitutional

The Obama Administration enthusiastically embraced a legal victory yesterday  (June 30th) when, in a 2-1 split decision, a federal appeals court panel upheld a lower federal court decision finding that the federal Health Reform Law is constitutional.  Some observers quickly seized on the fact that one of the two votes upholding the Health Reform Law was a conservative Republican judge, Jeffrey Sutton, who once clerked for Supreme Court Justice Antonin Scalia.  The third judge, a Reagan appointee, dissented on the substantive issue, arguing that the Health Reform Law is unconstitutional.

The core question remains an extremely close one.  The three judges on the panel were not unanimous and the opinion itself gives some further indications that the matter could go either way when it is finally decided by the Supreme Court.   For example, Judge Sutton, who concurred in part and wrote the majority opinion in part, indicated that his opinion is just one step in the process – at one point he essentially refers to the appeals court as a “middle management judge” and then later goes on to observe that he is “[m]indful that we at the court of appeals are not just fallible but utterly non-final in this case…”

Whether today’s decision has any ultimate impact will turn on its persuasive power and, in particular, whether the logic of the opinion is deemed compelling by the Supreme Court of the United States.  Even before this case approaches the high court, several additional steps will occur. First, the challengers could request the Sixth Circuit Court of Appeals to re-hear the case en banc, although information posted on the lead challenger’s website indicates that this option will not be pursued and that the challengers prefer that the case proceed directly to the Supreme Court.  In any event, the Sixth Circuit decision is just the first of the three appellate court reviews; two other federal appeals courts are currently considering similar challenges to the Health Reform Law.  In contrast to the Sixth Circuit’s decision in which the lower court had already found the Health Reform Law to be constitutional, the other two circuits, the Fourth and the Eleventh, would have to reverse lower courts that have previously rejected the Health Reform Law as being unconstitutional.   If either of those circuit courts decides the opposite way of today’s decision, the odds will increase that the Supreme Court will take up the matter more quickly.   If the high court takes the case this fall, it could decide the constitutionality of health care reform just months before the 2012 election.

A Shock to the Core: The Supreme Court Pries Jurisdiction Away from the Bankruptcy Courts on Counterclaims to Proofs of Claim, and Possibly More – Stern v. Marshall

On Thursday, the Supreme Court in a 5-4 decision ruled in Stern v. Marshall [1] that the congressional grant of jurisdiction to bankruptcy courts to issue final judgments on counterclaims to proofs of claim was unconstitutional. For the litigants, this decision brought an end to an expensive and drawn out litigation between the estates of former Playboy model Anna Nicole Smith and the son of her late husband, Pierce Marshall, which Justice Roberts writing for the majority analogized to the fictional litigation in Charles Dickens’ Bleak House. For bankruptcy practitioners, it is yet another chapter in an even more epic saga – that of the back-and-forth between Congress and the Supreme Court over the jurisdictional limits of the nation’s bankruptcy courts. Instead of offering finality, the decision only raises more questions about how far the Court’s reasoning will extend, and what the implications will be for practice under the Bankruptcy Code.

Background: Broad Bankruptcy Court Jurisdiction in 1978 Reform Act Ruled Unconstitutional by Supreme Court in 1982; Congress Adopts “Emergency Rule” in Response in 1984

Few who practiced then can forget the effect of the Supreme Court’s 1982 decision in Northern Pipeline [2] on the statutory regime enacted by Congress in the still-nascent Bankruptcy Code, which had gone into effect in October of 1978. The Code was a sweeping reform of the nation’s bankruptcy laws which involved elevating the previous “referees” in bankruptcy to the title of judges, and granting them the power to exercise the United States District Court’s jurisdiction over “all civil proceedings arising under title 11 [i.e., the Bankruptcy Code] or arising in or related to cases under title 11.”[3] A plurality of the Supreme Court in Northern Pipeline declared this grant of jurisdiction to bankruptcy courts under the new Bankruptcy Code unconstitutional, leaving courts and practitioners to wonder whether the Code would be thrown out the window.

The Northern Pipeline Court reasoned that granting such broad jurisdiction to bankruptcy courts was unconstitutional because bankruptcy courts were not “Article III courts – that is, courts whose authority derives from Article III of the Constitution. Article III courts come with two principal safeguards prescribed in Article III, Section 1 of the Constitution: lifetime appointment and the inability of Congress to reduce the judges’ salaries. These safeguards are intended to ensure the courts’ independence from the other branches of government, and are thus an implementation of the separation of powers principles underlying the Constitution in general. United States District Courts are Article III courts. Bankruptcy courts, on the other hand, are Article I courts. The Northern Pipeline Court held that assigning bankruptcy courts the jurisdiction of the district courts violated Article III of the Constitution because it removed “essential attributes of the judicial power” from the Article III courts.[4]

In response, Congress enacted a new statutory scheme, embodied in 28 U.S.C. §§ 157 and 1334, which was based on the so-called “Emergency Rule” developed by the district courts after Northern Pipeline. Under this scheme, United States District Courts have original jurisdiction over matters arising under, arising in or related to cases under the Bankruptcy Code, but district courts can refer these matters to the bankruptcy courts (a referral that is now automatic in all districts). Bankruptcy courts are given the power to issue final judgments in all “core proceedings” arising under the Bankruptcy Code, or arising in a case under the Bankruptcy Code. As to other, “non-core” matters related to a case under the Bankruptcy Code, bankruptcy courts can only issue proposed findings of fact and conclusions of law for de novo review by the district court, unless the parties otherwise consent. This statutory scheme went into effect in 1984.

History of Stern v. Marshall

Stern v. Marshall presented the Supreme Court with the opportunity to review the statutory scheme adopted by Congress in 1984. The model and actress Anna Nicole Smith had filed for bankruptcy in Los Angeles after the death of her billionaire husband, J. Howard Marshall, in 1995. Bitter litigation that had begun even before her husband’s death continued in the bankruptcy court between Smith and her late husband’s son, Pierce Marshall, over their competing claims to the Marshall estate.

In Smith’s bankruptcy case, Pierce filed both a proof of claim for defamation and an adversary complaint seeking a determination that his defamation claim was nondischargeable. Smith filed a compulsory counterclaim for tortious interference by Pierce with the gift she expected from her late husband. The bankruptcy court held a trial and granted judgment to Smith in the amount of $447 million.

Appeals and parallel litigation ensued, all of which cannot be described here, or in a manuscript of less than ten volumes. In short, after the entry of the bankruptcy court’s extraordinary judgment Pierce prevailed in a separate trial on the merits in Texas state court. Thereafter, Smith prevailed in a de novo review of the bankruptcy court’s judgment in federal district court in Los Angeles, though her $447 million judgment was reduced to $44 million. In this second round before the Supreme Court, the issue was very simple – did the bankruptcy court have jurisdiction to enter a final judgment on Pierce’s counterclaim? If so, that judgment would be the first final judgment in the matter and would thereby have a preclusive effect under principles of res judicata on the later Texas judgment in Pierce’s favor. If not, the Texas judgment would be the first final judgment and preclude the later district court judgment in Smith’s favor. In an earlier appeal, the Supreme Court had determined that the probate exception to federal jurisdiction did not apply in the case to render void the bankruptcy court judgment, sending the matter back to the Ninth Circuit to determine whether the bankruptcy court judgment had a preclusive effect on the Texas court contrary judgment based on other principles.

Supreme Court’s Holding

The Supreme Court held that while Smith’s compulsory counterclaim to Pierce’s proof of claim was clearly a “core proceeding” under the language of 28 U.S.C. § 157(b)(2)(C), the statute itself was unconstitutional. The Court held that Congress cannot grant to the bankruptcy courts (as Article I courts) the power to issue final judgments on common law causes of action like Smith’s counterclaim that are not resolved in the process of ruling on the proof of claim. The Court reasoned that any suit that is “the stuff of the traditional actions at common law tried by the courts at Westminster in 1789, and is brought within the bounds of federal jurisdiction,” is within the exclusive jurisdiction of Article III courts. Permitting Congress to take such actions out of Article III courts’ jurisdiction would frustrate the separation of powers principles of Article III and render that Article ineffective.[5]

The Court rejected the argument put forward by Smith that the so-called “public rights” exception applied and permitted Congress to grant bankruptcy courts the authority to issue final decisions on counterclaims like Smith’s. The Court found that Smith’s counterclaim did not fall under any of the formulations of the public rights exception for several reasons, including: (i) Smith’s counterclaim did not flow from a federal statutory scheme, (ii) Smith’s counterclaim was not completely dependent upon adjudication of a claim created by federal law, (iii) Pierce did not truly consent to bankruptcy court jurisdiction, since he had nowhere else to go but bankruptcy court if he wished to recover from Smith’s bankruptcy estate; and (iv) the case did not involve a situation where a specialized subset of matters was assigned to a special administrative agency, but rather a situation where a common law action was sought to be determined by a court with broad substantive jurisdiction.[6]

Potential Implications of Stern v. Marshall

The Supreme Court’s holding was limited to one subsection of 28 U.S.C. § 157(b) – in particular subsection (b)(2)(C) which provides that counterclaims to proofs of claim are core proceedings. Indeed, the Court asserted that its holding does not “meaningfully change[] the division of labor in the current statute,”[7] though in the same breath it also stated that a statute’s efficiency or convenience will not save it if it is contrary to the Constitution.[8]

However, the Court’s reasoning is broad, and can potentially be applied to other subsections, such as section 157(b)(2)(H) pertaining to fraudulent conveyance actions, which the Supreme Court has previously held to be “quintessentially suits at common law,”[9] and/or section 157(b)(2)(K), pertaining to determinations of the validity, extent and priority of liens, which are generally determined by state law.

Also, even if limited to section 157(b)(2)(C), counterclaims by the estate are a common occurrence in bankruptcy. As the dissent noted, the Court’s ruling may lead to gamesmanship between creditors and debtors in litigation over proofs of claim, with the proof of claim being decided in the bankruptcy court and a parallel proceeding occurring in the district court. All of this would lead to increased costs and delay – neither of which a typical debtor or creditor can afford. Writing for the dissent, Justice Breyer referred to this as “a constitutionally required game of jurisdictional ping-pong” which will lead to “inefficiency, increased cost, delay and needless additional suffering among those faced with bankruptcy.”[10]

A Potential Fix: Bankruptcy Courts as Article III Courts

Historically, Congress has rewritten or substantially revised the nation’s bankruptcy laws approximately once every 40 years – witness the Bankruptcy Act of 1898, followed by the Bankruptcy Act of 1938, followed yet again by the Bankruptcy Reform Act of 1978. The Bankruptcy Code itself has been amended in significant respects on multiple occasions, including in 1984, 1994 and 2005. The potentially inefficient jurisdictional system following the Supreme Court’s ruling in Stern v. Marshall may be cause to take up the drafting pen yet again. This time, Congress may consider taking a step it deliberately refrained from taking in 1978 and 1984 – that is, providing for bankruptcy courts to be Article III courts by making bankruptcy judges appointed for life and immune to salary reductions by Congress. This would avoid the core/non-core mire altogether in favor of a system of clarity and efficiency that should benefit most debtors and creditors, and well as the bankruptcy courts and district courts.

United States Supreme Court Strikes Down Largest Employment Discrimination Class Action in History

On June 20, 2011, the United States Supreme Court granted employers some long-awaited relief by substantially raising the bar for plaintiffs (and their lawyers) seeking to certify large employment discrimination class actions. In Wal-Mart v. Dukes (No. 10-277), the Court reversed the Ninth Circuit Court of Appealsen banc decision upholding the certification of a class action filed on behalf of approximately 1.5 million hourly and salaried female employees alleging sex discrimination in pay and promotions. The potential damages were estimated to be more than a billion dollars.

As we have detailed in prior newsletters and bulletins, because of potentially large damage awards and fee-shifting provisions, employment class actions have been a boon for the Plaintiff’s bar while exposing employers to significant liability and litigation costs.  Although the Dukes decision will not put an end to class actions, it, at the very least, temporarily halts the large nationwide employment discrimination class actions. In its ruling, the Supreme Court significantly increased the plaintiffs’ burden of proof at the class certification phase and mandates that district courts look more carefully at whether class certification is appropriate, including a critical assessment of plaintiffs’ proof of class-wide discrimination.

The Supreme Court’s Decision in Dukes

Following an increasing trend, the Dukes plaintiffs alleged that Wal-Mart discriminated against its female employees by delegating subjective decision making authority with respect to pay and promotion decisions to its local store managers and by building a corporate culture that fostered sex bias in these managerial decisions. Both the district court and the Ninth Circuit held that plaintiffs demonstrated that their class claims were appropriate for certification by relying on:

(i) statistical evidence purportedly demonstrating disparities in the pay and promotions of males and females; (ii) anecdotal reports of discrimination by 120 female employees; and (iii) the “expert” testimony of a sociologist who concluded that Wal-Mart’s culture was susceptible to gender discrimination.

Plaintiffs Did Not Satisfy Their “Commonality” Burden under Rule 23(a)

In a strongly worded opinion, Justice Scalia, writing for the 5–4 majority, disagreed that the Dukes plaintiffs’ evidence was sufficient to support class certification because it did not meet plaintiffs’ burden of satisfying Rule 23 of the Federal Rules of Civil Procedure requirements for certification. As recast by Justice Scalia, to meet these requirements, plaintiffs must provide “significant proof” that their class claims involve a common issue the resolution of which is “central to the validity of each one of the [class members’] claims in one stroke”; for example, discriminatory bias on the part of the same manager or the use of a discriminatory test.

The majority’s decision removes any doubt that a trial court must conduct a “rigorous analysis” to ensure that plaintiffs have satisfied the Rule 23 elements, including a searching review of evidence that goes to the merits of the case. Exploration of the merits was appropriate in Dukes, the majority found, because it necessarily overlapped with the plaintiffs’ class-wide allegations that Wal-Mart engaged in a pattern and practice of discrimination.

In Dukes, the majority found plaintiffs’ evidence fell far short of the required “significant proof.” The Court did not reverse a prior decision that delegation of subjective decision making to individual managers could constitute a common discriminatory practice, but the majority found plaintiffs’ evidence lacking where Wal-Mart had a “general policy of non-discrimination” and where thousands of managers were making literally millions of pay and promotion decisions in some 3,400 stores. Specifically, the Court rejected plaintiffs’ sociological expert’s conclusion that Wal-Mart’s corporate culture made it more susceptible to gender bias in managerial decision making because the expert could not even opine, let alone show, that gender bias infected .5 percent or 95 percent of managerial decisions. The Court concluded that this was “the opposite of uniform policy that could provide commonality needed for a class action.”

The majority also found plaintiffs’ statistical and anecdotal evidence to be equally unpersuasive. Plaintiffs’ statistical expert conducted a region-by-region analysis and found that female representation in management positions was substantially less than in lower hourly positions and that females earned less than men. The Court discounted this proof, stating that any disparity at the regional level could not by itself establish that there were pay or promotion disparities at the individual stores, and even less so across all class members, which the majority stated was necessary to support plaintiffs’ theory of commonality. Furthermore, even if the statistics supported disparity at all the individual stores, the analysis did not consider potential assertions by Wal-Mart’s managers that women are not as readily available in certain store areas or the differences in the criteria used by the individual stores to make the decisions. The Court further found that the plaintiffs’ anecdotal evidence comprised of 120 affidavits representing the reporting experiences of only 1 out of every 12,500 class members and only 235 of Wal-Mart’s 3,400 stores could not show the whole company operated under a general policy of discrimination.

Plaintiffs Could Not Pursue Individualized Monetary Claims under Rule 23(b)(2)

The Court also unanimously resolved a split in the Courts of Appeal and held that the claims for backpay should not have been certified as a class action under Rule 23(b)(2) because such backpay damages were not “incidental” to the injunctive or declaratory relief sought. The Court concluded that certification under Rule 23(b)(2) is inappropriate when “each member would be entitled to an individualized award of monetary damages.”

Instead, the Court held that the monetary claims involving individualized proof must proceed under Rule 23(b)(3), which permits class certification only upon a showing that common questions of law and fact predominate over questions affecting individuals and after providing notice of the class action to potential class members and an opportunity to opt out. The Court reasoned that these procedural safeguards were necessary to protect class members’ individual interests in monetary relief.

The Court also rejected the position adopted by the Ninth Circuit that a statistical sample of class members could be used to determine the damages for the whole class without individualized proceedings. The Court reasoned that this sampling method was inconsistent with the procedures established by the Supreme Court for determining the scope or lack of individual damages in Title VII claims. The majority further suggested, without deciding, that this approach might also violate an employer’s right to individualized determinations of each class member’s eligibility for backpay.

Implications of the Court’s Decision in Dukes

The most immediate effect of the Dukes decision is that district courts will need to reconsider the appropriateness of employment discrimination class actions on their docket that were certified under Rule 23(b)(2). In the longer run, Dukes may not have sounded the death knell for all large discrimination class actions but it has made it very difficult for plaintiffs to mount class actions that seek to cover multiple types of claims, e.g., pay and promotions, and many different job classes, facilities and/or managers. As a consequence, future class actions are more likely to focus on more discrete claims of discrimination covering fewer locales and limited to common decision makers and covering a more homogenous class. In particular, Dukes is likely to curtail the bringing of class actions under the “delegation of subjective decision making” theory. Although the Court did not articulate clear evidentiary standards for establishing “commonality,” the Court emphasized the need to demonstrate a common allegedly operative discriminatory practice and injury across all putative class members. It is difficult to see how plaintiffs will mount class actions based on “subjective decision making” given the Court’s emphasis that “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.”

The Dukes decision also, as a practical matter, will require district courts to probe more deeply into the merits at the class certification stage, and the Supreme Court endorsed the consideration of Daubert motions to exclude expert testimony before class certification to assess such testimony’s adequacy. Moreover, although Dukes is restricted to class certification requirements, its emphasis on proving that the alleged discriminatory practice applied to and may have injured all class members may also lead to higher standards of proof in establishing class-wide discrimination on the merits.

Dukes also will lessen the incentive of plaintiffs’ attorneys to bring class actions by making it more difficult to seek monetary damages for large, diffuse classes.

How plaintiffs’ attorneys will respond is open to speculation. The attorneys representing Dukes profess their intent to bring individual and more discreet, localized class actions. This may become an overall trend. Employers should keep in mind that the Dukes decision has no immediate impact on the ability of the EEOC to bring company-wide pattern and practice suits because the EEOC generally is not required to satisfy the “commonality” principles espoused by the Supreme Court. Nevertheless, the Dukes decision, which comes on the heels of the Court’s May 2011 pro-employer decision in AT&T Mobility v. Concepcion et ux. seemingly validating the use of mandatory arbitration agreements to bar employees’ ability to litigate claims on a class basis, is a welcome change for employers.

J. McIntyre Machinery v. Nicastro: Declarifying Asahi

Remember when George H.W. Bush was the 41st President of the United States? Back when the Warsaw Pact dissolved and the U.S.S.R. became the Commonwealth of Independent States? Back when Pan Am ceased flying?

Well, I do.

(No snarky questions professing ignorance about the Warsaw Pact, if you please.)

I was in my first year at Baylor Law School and trying to master the complexities of Civil Procedure, including the mysteries of International Shoe and “minimum contacts.”

And just about the time I thought I had it, Professor Trail smiled that mischievous smile of his and came straight at us with something about a “Stream of Commerce” and Asahi Metal Inustry v. Superior Court. As best I can recall, we were either supposed to elucidate what the law of personal jurisdiction actually was in the wake of Asahi, or else predict who would prevail in a cage match between Justice Sandra Day O’Connor and Justice William Brennan.

The result was predictable confusion–confusion that reached down the ages.

Until today. Professors and law nerds everywhere had the vapors because the Supreme Court of the United States had a chance to clear it all up in J. McIntyre Machinery Ltd. v. Nicastro. After the break, a few words on how end-of-term alphabet soup begat “Son of Asahi.”

Justice Kennedy set out the Asahi problem. Does jurisdiction depend more upon the Defendant taking specific action toward the forum state, or foreseeability enough:

In Asahi, an opinion by Justice Brennan for four Justices . . . contended, “jurisdiction premised on the placement of a product into the stream of commerce [without more] is consistent with the Due Process Clause,” for “[a]s long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.” . . .  .

The standard set forth in Justice Brennan’s concurrence was rejected in an opinion written by Justice O’Connor; but the relevant part of that opinion, too, commanded the assent of only four Justices, not a majority of the Court. That opinion stated: “The ‘substantial connection’ between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.”

Nicastro gave the Court a chance to pick. But alas, five cats could not be herded into a single corral.

Broadly speaking, the question presented in Nicastro was whether a foreign manufacturer could be hauled into the state where its machine injured someone. The manufacturer had a distributor for U.S. sales, making such sales foreseeable, but had not itself targeted the state where the injury occurred.

But here is where the advocacy begins.

According to Justice Kennedy, writing for the plurality, the question was whether a “British manufacturer of scrap metal machines was subject to jurisdiction in New Jersey, even though at no time had it advertised in, sent goods to, or in any relevant sense targeted the State.”

Justice Ginsberg stated it a bit differently:

A foreign industrialist seeks to develop a market in the United States for machines it manufactures. It hopes to derive substantial revenue from sales it makes to United States purchasers. Where in the United States buyers reside does not matter to this manufacturer. Its goal is simply to sell as much as it can, wherever it can. It excludes no region or State from the market it wishes to reach. But, all things considered, it prefers to avoid products liability litigation in the United States. To that end, it engages a U. S. distributor to ship its machines state-side. Has it succeeded in escaping personal jurisdiction in a State where one of its products is sold and causes injury or even death to a local user?

She also might have mentioned that the “three-ton metal shearing machine severed four fingers on Robert Nicastro’s right hand.”


So, how did the Brennan/O’Connor cage match get decided?

It didn’t. Now it’s just the Kennedy/Ginsburg cage match:

  • Justice Kennedy (with Roberts, Scalia, and Thomas) would hold that Justice Brennan’s concurrence was “inconsistent with the premises of lawful judicial power,” because “it is the defendant’s actions, not his expectations, that empower a State’s courts to subject him to judgment.” Targeting the United States is not the same thing as doing business in New Jersey.
  • Justice Ginsberg (with Kagan and Sotomayor) would hold that the manufacturer’s intent to target the U.S. market was enough to subject it to jurisdiction in New Jersey, even if it’s independent distributor was responsible for the New Jersey sale.
  • Justice Breyer and Justice Alito decided that both groups had cooties and would only concur in the judgment. They thought it “unwise to announce a rule of broad applicability without full consideration of the modern-day consequences,” which they thought were absent from the case.

Justice Kennedy recognized that before today’s opinion, “[t]he rules and standards for determining when a State does or does not have jurisdiction over an absent party [were] unclear because of decades-old questions left open in Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U. S. 102 (1987).”

They still are.

For want of a fifth vote, we are about 14,000 words the richer after today’s three opinions, but none the wiser.

Is it possible to read three Supreme Court opinions on personal jurisdiction and know less than when you started?

U.S. Supreme Court Upholds Government Ethics Law Over First Amendment Challenge

The Supreme Court of the United States has given much needed guidance on the question of how the First Amendment applies to state ethics laws. The Court’s 8-1 opinion in Nevada Commission on Ethics v. Carrigan held that the First Amendment did not prohibit the enforcement of a Nevada statute requiring members of legislative bodies – including a city or town council – to recuse themselves when voting on a matter where the legislator’s independence could be questioned by a reasonable observer.

In Carrigan, the state ethics commission applied the statute to hold that a member of a town council should have recused himself from voting on a hotel project because a close friend and campaign manager worked as a consultant on the project. The Nevada Supreme Court struck down the statute by finding it to be an overbroad restriction on the council member’s core political speech. The U.S. Supreme Court disagreed, holding that a state could place restrictions on local legislative bodies that prevent members from voting on issues in which they have a personal stake. Relying on historical evidence showing that many states and Congress had imposed such restrictions since the founding, the Court held that this type of ethics statute did not restrict the legislator’s personal speech but instead protected the public position the legislator held. The Court also suggested that restrictions on speech during city or town council meetings would be subject to review only under the less stringent standard for “time, place and manner” restrictions.

The opinion can be found at:

Dukes v. Wal-Mart: What the Supreme Court Decision Means for Employers

In Dukes v. Wal-Mart, the United States Supreme Court reversed certification of the largest sex discrimination class action in our nation’s history. The Plaintiffs sought to certify a nation-wide class of approximately 1.5 million former and current female Wal-Mart employees. The Plaintiffs alleged that nation-wide class certification was appropriate because Wal-Mart engaged in a policy or practice of denying its female employees raises or promotions by giving its local managers discretion to determine when to give raises or promotions.

Justice Scalia, writing for a 5-4 majority, gave renewed life to the requirement that plaintiffs establish common questions of law or fact when seeking to certify a class action. In reversing class certification in Dukes, Justice Scalia explained that a proper class must present both a common question and, more importantly, a common answer to the question of “why was I disfavored?” Significantly, plaintiffs must present “convincing proof” to support their contentions, instead of simply relying on allegations in a complaint. The majority of the Supreme Court agreed that the Plaintiffs had failed to establish a “common answer” because they sought to litigate over millions of employment decisions without “some glue holding the alleged reasons for all of those decisions together.” In so holding, the Supreme Court specifically noted that Wal-Mart had an EEO policy that it enforced, including providing penalties to those who violated the policy.

The Supreme Court’s reversal of class certification in Dukes is a significant victory for employers everywhere. Plaintiffs will have to narrow their class definitions. Employers may delegate authority to local managers without concern that the delegation, in and of itself, will form the basis for a class action complaint. However, to take advantage of the Dukes decision, employers should make sure to enforce their EEO policies and be aware that senior executives’ memos or emails setting forth corporate policy may well be the evidence that decides whether a company-wide or region-wide class action is appropriate.

Additionally, employers should be aware of their workplace demographics. Wal-Mart was accused of having a statistically significant bias against women in both promotions and pay. While Wal-Mart may have had a non-discriminatory explanation for these statistics, the cost of providing such an explanation may prove to be prohibitively high. Employers should consider periodically monitoring their workplace demographics to determine if any evidence of possible discrimination exists. Because it is unlawful (in most cases) to intentionally favor groups of workers, even if the goal is to avoid a perceived statistical bias, dealing with problematic demographics/statistics may be complicated and may require counsel. In almost all cases, however, employers will be better served knowing about adverse statistical evidence they find on their own, rather than learning of the evidence through the filing of a class discrimination complaint.

Supreme Court Grants Cert. In Mayo v. Prometheus

June 20th, in what may be an ominous turn for biotech IP law, the Supreme Court granted cert. for the second time in Mayo Collaborative Services v. Prometheus Labs., Inc, Supreme Court No. 10-1150. Post-Bilski, the Supreme Court granted cert., vacated and remanded the Fed.  Cir.’s decision, rendered December 17, 2010, (related posts are archived under “patentable subject matter”) that reaffirmed that claims involving methods of medical treatment coupled with determining the levels of metabolites of the administered drugs were directed to patentable subject matter, and were not directed to abstract ideas or phenomena of nature. 628 F.3d 1347 (Fed. Cir. 2010).

Is it pay-back time? In the decision below, the Fed. Cir. pointedly in fn. 2, declined to give weight to the “Metabolite Labs. dissent,” 548 U.S. 124) in which Justices Breyer, Souter and Stevens would have found claims to an assay for cobalamin deficiency patent-ineligible as involving “natural correlations and data-gathering steps.” The Prometheus claims are not without vulnerable points. The Fed. Cir. agreed that the steps recited comparing the determined level of the metabolite to a benchmark level and concluding that a need exists to increase or decrease the amount of the drug administered were mental steps and not per se patentable. The Fed. Cir. also held that the first steps of the claims – the administering and determining steps – were not merely data gathering steps, but were central to the claimed method of optimizing therapeutic efficacy of the treatment.

While two of the three Justices who wrote the Metabolite dissent have retired, the Court clearly feels that there are issues here that need resolution. However, it is difficult to see how “methods of medical treatment” could remain patentable subject matter if these claims are held not to be. While processes are s. 101 patentable subject matter, John L. White’s Chemical Patent Practice (1993) felt it necessary to include a section “Process of Treating Humans.” Paragraph three begins:

“Claims to the treatment of humans medicinally are now allowed. Ex parte Timmis (POBA 1959) 123 USPQ 581 (treatment of chronic myeloid leukemia). The fact the claimed process for modifying a function of the human body (combating the clotting of blood) involves a mental determination of the amount administered is not a bar to patentability where that portion is an incidental feature of the process. Ex parte Campbell et al., (POBA 1952) 99 USPA 51.”

These decisions are from the nineteen fifties not the eighteen fifties! In Prometheus, the Fed. Cir. explicitly noted that claims to methods of medical treatment are patentable subject matter. Are modern medicine and IP law about to part ways?