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States Force High-Stakes Battle Over Legal Sports Betting

Cases: Christie v. NCAA and New Jersey Thoroughbred Horsemen's Association v. NCAA

Counsel: Two former George W. Bush administration solicitors general will face off: Theodore Olson of Gibson, Dunn & Crutcher for New Jersey Gov. Chris Christie and Paul Clement of Kirkland & Ellis representing the NCAA.

About: Can the federal government keep states from authorizing legal sports betting? That is the high-stakes question raised by Christie's persistent efforts to allow sports betting at New Jersey's casinos and racetracks, where the state could reap millions in tax revenue. Five major sports groups — the National Football League, National Basketball Association, Major League Baseball, the National Hockey League and the National Collegiate Athletic Association — challenged the governor's plan in court, claiming it violates a federal law that bars most states from licensing sports betting. Christie counters that the 1992 law — the Professional and Amateur Sports Protection Act — violates the 10th Amendment of the U.S. Constitution by “commandeering” the regulatory power of states. But the sports leagues, joined by the federal government, assert that the federal law is a permissible exercise of congressional power.

At Stake: If the court strikes down the law, revenue-hungry states across the country could quickly follow New Jersey's lead, recasting the gambling landscape nationwide.

Snap Prediction: The court's conservative justices generally frown at federal overreach that weakens the power of states, but the prospect of legalizing sports betting nationwide may give them pause.

— Tony Mauro

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Is Inter Partes Review for Patent Challenges Constitutional?

Cases: Oil States Energy Services Group v. Greene's Energy Group and SAS Institute v. Matal

Counsel: Allyson Ho of Morgan, Lewis & Bockius for Oil States Energy; George Quillin of Foley & Lardner, for Greene's Energy Group; Gregory Castanias of Jones Day for SAS Institute Inc.; Acting Solicitor General Jeffrey Wall for the U.S. government in each case.

About: The America Invents Act established an administrative procedure called inter partes review (IPR) for challenging the validity of patents at the U.S. Patent and Trademark Office. Oil States contends that the procedure is unconstitutional and that patent validity disputes are reserved for Article III courts and juries. SAS challenges the PTO's statutory authority to decide only a subset of the patent claims challenged in an IPR petition.

At Stake: Inter partes review is a popular, low-cost option for fighting patent infringement allegations. If the court rules the tribunals are unconstitutional, it would shift substantial power back toward patent owners.

A win for SAS would not be as momentous, but it could force accused patent infringers to choose between IPR and courts, rather than using both to spend down patent owners.

Snap Prediction: Oil States has a strong case but a win would cause massive disruption in the patent arena. Patent owners are more likely to get their win in SAS based on the plain language of the America Invents Act.

— Scott Graham

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Can the Police Get Cellphone Call Records With No Warrant?

Case: Carpenter v. United States

Counsel: Nathan Wessler of the American Civil Liberties Union for the petitioner; U.S. Solicitor General's Office for the United States.

About: In the case of a man convicted of armed robberies in Michigan and Ohio, the court will decide whether the government may collect, without a warrant, a suspect's extensive cellphone call records without running afoul of the Fourth Amendment. The U.S. Court of Appeals for the Sixth Circuit ruled that the data collection was not a search, because defendant Timothy Carpenter had no reasonable expectation of privacy in the location of his cellphone as he moved about. Lawyers for Carpenter assert that circuit courts are badly split on this and the high court needs to adapt old precedents to the digital age.

At Stake: The court's decision could establish new 21st century rules for determining what kind of high-tech police surveillance requires a search warrant beforehand. The court's ruling could also alter its longstanding “third party doctrine” – the notion that the Fourth Amendment does not protect information that an individual willingly shares with an entity like a phone company. In a 2012 case, Justice Sonia Sotomayor said the doctrine is “ill-suited” to the digital age, because so much personal information is already shared with third parties.

Snap Prediction: While justices across the spectrum have voiced concern about the high-tech invasion of personal privacy, a majority of the court may give police a pass in the case because the content of the calls was not revealed.

— Tony Mauro

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Assessing Corporate Liability in the Age of Terrorism

Case: Jesner v. Arab Bank

Counsel: Jeff Fisher of Stanford Law School for plaintiffs. Paul Clement of Kirkland & Ellis represents Arab Bank.

About: Whether corporations can be held liable under the alien tort statute for wrongdoing against aliens. Joseph Jesner and roughly 6,000 other plaintiffs filed suit in New York under the law, claiming that the Jordan-based Arab Bank gave financial aid to anti-Israel terrorist groups, including funding suicide bombers and providing “martyrdom” payments for their families.

At Stake: Pointing to the proliferation of lawsuits against corporations under the alien statute in recent years — more than 150 — business groups are hoping the court will rule that corporations cannot be held liable. But briefs supporting the plaintiffs argue that the statute provides the only mechanism for suing banks and other entities that use U.S. operations to give aid to terrorists.

Snap Prediction: A tough call. The issue of corporate liability was left unresolved by the Supreme Court in the 2013 Kiobel case, because the court found that all wrongdoing in that case took place outside the United States, beyond the scope of the statute. The Jesner plaintiffs assert that the bank used its New York branch as a “paymaster” for terrorist groups. The bank counters that the case is “fundamentally foreign” because all the injuries took place outside the United States.

— Tony Mauro

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Employees Face Tough Climb in Arbitration Agreements Case

Cases: Epic Systems v. Lewis; National Labor Relations Board v. Murphy Oil; Ernst & Young v. Morris (consolidated)

Counsel: Hogan Lovells' Neal Katyal for Epic Systems Corp. and Murphy Oil Corp.; David Zoeller of Hawks Quindel in Madison, Wisconsin, representing Jacob Lewis; Williams & Connolly's Kannon Shanmugam for Ernst & Young; Max Folkenflik of New York's Folkenflik & McGerity for Stephen Morris.

About: This trio of cases, consolidated for argument on Oct. 2, asks the high court whether workplace arbitration agreements that ban class and collective actions by employees violate the National Labor Relations Act and so are unenforceable under the Federal Arbitration Act. The Trump administration's Department of Justice recently reversed the former Obama administration's stance supporting the National Labor Relations Board and employees in the cases.

At Stake: The National Labor Relations Act, which encourages collective bargaining, applies to most private sector employers. Dozens of well-known companies, from Samsung to Uber Technologies Inc., urged the justices to decide the question that has divided the federal circuit courts. At least four dozen cases are pending in those courts.

Snap Prediction: The Supreme Court has been a consistently pro-arbitration court for some years now and has upheld class action bans in consumer arbitration agreements. Employee groups hope the justices will give little weight to the government's change in position which, they say, is the result of politics, not neutral legal judgment. Employees will have an uphill battle in this case.

— Marcia Coyle

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Whistleblower Protections: Does 'Chevron' Deference Apply?

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Case: Digital Realty Trust v. Somers

Counsel: Williams & Connolly's Kannon Shanmugam for Digital Realty; Daniel Geyser of Stris & Maher for Paul Somers.

About: Does the Dodd-Frank Act's anti-retaliation provisions for whistleblowers apply to and protect individuals who do not make a whistleblower report to the U.S. Securities and Exchange Commission but instead file internal reports within their own companies?

The lower courts have struggled with what appear to be conflicting whistleblower provisions in the act. The U.S. Court of Appeals for the Ninth Circuit ruled that the protections apply to internal reports.

At Stake: Business groups contend that the Ninth Circuit decision, if affirmed, would greatly expand the number of employees authorized to pursue the act's remedies and the amount of time in which they may sue for alleged retaliation.

The SEC's regulations interpret the provisions to extend to all persons who make disclosures of suspected violations.

Snap Prediction: Chevron deference to an agency's interpretation of its implementing statute may play a role here as it has in the lower courts. While some justices — including Justice Neil Gorsuch — have questioned the viability of Chevron deference, there may not be a majority to end it. This is another tricky statutory interpretation exercise.

— Marcia Coyle

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At Stake in Clean Waters Act Challenge: Where to Take the Fight

Case: National Association of Manufacturers v. Department of Defense

Counsel: Mayer Brown's Timothy Bishop for National Association of Manufacturers and Acting Solicitor General Jeffrey Wall for the U.S. Department of Defense.

About: The justices will decide a key jurisdictional question involving what has been called one of the most consequential regulations ever issued under the federal Clean Water Act. To wit: Where does the Clean Water Act say challenges to the “waters of the United States” rule — defining the act's coverage — should be fought: federal district courts or federal appellate courts? The U.S. Court of Appeals for the Sixth Circuit ruled that it had jurisdiction.

At Stake: More than 100 parties — states, business organizations, environmental groups, agricultural interests, energy companies and others — filed petitions or intervened in petitions in the Sixth Circuit. Until the Supreme Court decides the issue, lawyers predict, there will be jurisdictional battles over every major rule challenged under the act.

Snap Prediction: This statutory interpretation case is hard to call. Expect some mind-numbing arguments as each side cites warring sections of the Clean Water Act to support their jurisdictional arguments.

The government also argues that efficiency and speed weigh in favor of one appellate court's jurisdiction. But the challengers place high value on building a record in district courts. This case could present a challenge even for a committed “textualist” like Justice Neil Gorsuch. Some clues may emerge during the Oct. 11 arguments.

— Marcia Coyle

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Tax Code 'Omnibus' Criminal Clause Faces Scrutiny

Case: Marinello v. United States

Counsel: Jenner & Block's Matthew Hellman for Carl Marinello; Acting Solicitor General Jeffrey Wall for the United States.

About: Does a taxpayer need to know that he or she is being investigated by the IRS to be charged with obstruction of justice? The justices will examine the reach of the so-called omnibus clause of 26 U.S.C. Section 7212 (a), which makes it a felony to “in any other way corruptly … obstruct[] or impede[], or endeavor[] to obstruct or impede, the due administration of” the internal revenue code.

At Stake: The American College of Tax Counsel says the Second Circuit's broad reading of the omnibus clause creates “an all-purpose tax felony that reaches the entire spectrum of administration of the tax code without requiring willfulness or an affirmative act.” The government contends nothing in the statute's text requires that an IRS action already be underway when someone tries to obstruct the IRS's administration of the tax laws.

Snap Prediction: Marinello could be another case in a recent series in which the justices narrowed the reach of criminal omnibus obstruction of justice laws. The high court has voiced concerns about prosecutorial abuse of those omnibus clauses and laws as well as about overcriminalization. Remember McDonnell v. United States, Yates v. United States and Arthur Andersen v. United States, among others?

— Marcia Coyle