Commercial Litigation Update

A 6-3 Court, sharply divided along conservative and liberal jurisprudential lines, has decided the two headlining cases involving affirmative action in university admissions: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College gets top billing, perhaps relating to the alumni status of several Justices, but the decision also resolves the case of Students for Fair Admissions, Inc. v. University of North Carolina. 

Of the four cases decided today, the one that likely pertains to the largest number of this blog’s readers is Coinbase, Inc. v. Bielski, a 5-4 opinion delivered by Justice Kavanaugh, who wrote for himself, the Chief Justice, and Justices Alito, Gorsuch, and Barrett. Interestingly, Justice Thomas largely joined Justice Jackson’s dissenting opinion.

With four decisions today, the Court has now cut its backlog down to the mid-teens. And with decisions likely tomorrow as well, the Court is well on its way to clearing the docket as the term ends.

It should come as no surprise to constitutionalists, practitioners under the Federal False Claims Act (31 U.S.C. §§3729–3733) (FCA), and auditors of the oral argument in the case that the Supreme Court has held that the federal government may move to dismiss an FCA action under §3730(c)(2)(A) whenever it has intervened—whether during the seal period or later on. United States ex rel. Polansky v. Executive Health Resources, Inc. To assert this right, the government must actually intervene (which is not difficult since the statute allows it at any time before final judgment, even on appeal), and the propriety of dismissal is to be adjudicated pursuant to Fed. R. Civ. P. 41(a), the rule generally governing voluntary dismissal of suits in ordinary civil litigation, and dismissal should be granted in all but the most extraordinary cases. 

The Supreme Court issued no fewer than six opinions on Thursday, May 18, addressing questions including whether an internet platform might be held liable as an aider and abettor of terrorist activity, and whether Andy Warhol’s famous alterations of photos of the artist known as Prince violated the copyright of an almost-as-famous photographer.

On Wednesday, April 19, the Court decided three cases that are interesting and instructive in following how the Justices, both nominal liberals and conservatives, attempt to apply textual methodology in assessing jurisdictional prerequisites, though not always reaching unanimous results.

The Supreme Court issued a single opinion today. Wilkins v. United States concerns a property rights dispute between the federal government and two owners of land near the Bitterroot National Forest in rural Montana to which the government claims an easement that, it argues, includes public access, which the petitioners dispute. They, therefore, sued the government under the Quiet Title Act (the “Act”), which allows challenges to the United States’ rights in real property. The government moved to dismiss on the ground that the petitioners’ claim is barred by the Act’s 12-year statute of limitations. See 28 U. S. C. §2409a(g). The issue before the Court was whether the time bar is jurisdictional or, as the Court held in a 6-3 decision, a nonjurisdictional claims-processing rule.

The Supreme Court decided two cases today, and though neither of them presents the sort of widely consequential matter that, say, the President's student loan forgiveness plan that was argued this morning does, each has interesting aspects. Both are decided on the now-vogueish doctrine of textualism, though each shows divisions among the Justices that prove again that not only can Justices who have differing jurisprudential philosophies agree with one another as to statutory meaning, but that Justices with the same jurisprudential philosophy can disagree with one another on text as well. Thus, while there are cases, like Dobbs, where one might accurately predict the outcome on the basis of philosophy or alignment with the preferences of the President who nominated various Justices, there is a host of cases where labels don't hold up at all.

The Court has broken the logjam of pending opinions, rendering three decisions today, one of which, dealing with the issue of when overtime pay is mandated under the Fair Labor Standards Act (FLSA), might have a broader effect. So, let's start with that one: Helix Energy Solutions Group, Inc. v. Hewitt.