We've got a busy day ahead—with orders coming down at 9:30 and two oral arguments beginning at 10. The first up is United States v. Sanchez-Gomez, a dispute over the jurisdiction of federal appeals courts to rule on U.S. Marshals policies. The second case, a class action titled China Agritech v. Resh, is explained below, with comments from one of the advocates—David Frederick, who will be arguing his 50th case today. Plus, we report on an unusual recusal by Justice Anthony Kennedy in a pending case.

Thanks for tuning in, and as always we welcome feedback and story ideas at [email protected] and [email protected].

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Unstacking 'Stacked' Class Actions

The Roberts court generally has not been very friendly to class actions of any kind. This morning the justices get another opportunity to wrestle with the latest wrinkle in a securities class action in which the business community is urging an end to so-called “stacked” class actions.

The issue in China Agritech v. Resh might not be as exciting as that monumental of Supreme Court class actions: Walmart v. Dukes, involving a nationwide class of more than 1 million female employees. Still, the Walmart decision, which held that the class was too big to be certified, does cast a bit of a shadow over the latest case before the justices.

A federal district court denied certification to two successive class actions against China Agritech related to the same alleged violations of the Securities Exchange Act. In 2014, two years after the second denial, another group of plaintiffs filed a class action based on the same events as the earlier two. China Agritech argued the action was untimely and the district court agreed. The U.S. Court of Appeals for the Ninth Circuit in May 2017 disagreed and reinstated the class action.

➤➤ What's the issue? In 1974 in American Pipe & Construction Co. v. Utah, the justices said the statute of limitations is tolled—suspended—during the pendency of a class action to allow absent class members to bring individual claims after the failure of the class proceeding. But can those individuals with timely claims because of the tolling rule join together and file a follow-on class action?

➤➤ What China Agritech argues: Seth Aronson, partner at O'Melveny & Myers, argues that the Ninth Circuit's rule “impermissibly extends equitable tolling when the plaintiffs have not exercised diligence.” Those absent class members could have sought to protect their rights through individual actions when the class failed. Instead, they “slept on their rights and are thus not entitled to equity.”

➤➤ What Resh argues: A timely class action suspends the limitations as to all asserted class members and “puts defendants on fair notice of potential liability in a subsequent class action asserting similar claims,” counters David Frederick of Kellogg, Hansen, Todd, Figel & Frederick.

➤➤ What's at stake: The U.S. Chamber of Commerce—represented by Gibson, Dunn & Crutcher's Mark Perry—and other business groups urge the justices to limit American Pipe to individual claims. They argue that “stacked” class actions erode the finality and certainty that statutes of limitation provide; create endless rounds of class certification briefing and delay discovery and trials for years.

But a group of plaintiffs in post-Walmart successor class actions, Public Citizen, AARP and a group of retired federal judges, among others, contend follow-on class actions would not result in the claimed parade of horribles. District judges have tools to prevent endless relitigation of class certification. Permitting a subsequent class action to try to cure the deficiencies of the prior one is consistent with the Private Securities Litigation Reform Act of 1995.

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A Milestone Argument

His first argument, in January 1997, was a “little case” about the Jones Act, recalled David Frederick of Kellogg, Hansen, Todd, Figel & Frederick. It immediately followed arguments in Clinton v. Jones which asked whether a sitting president—Bill Clinton—could be sued for sexual harassment.

As Frederick, then an assistant to the solicitor general, and Deputy Solicitor General Edward Kneedler sat at the backup counsel table, Kneedler, looking over their brief, said to Frederick, “I think our position in this case is probably correct,” recalled Frederick. “I said to him, 'Well, thanks for the vote of confidence.'”

When the Clinton arguments ended and he and Kneedler approached the lectern, “Chief Justice [William] Rehnquist turned to Justice [John Paul] Stevens and said, 'This next case is really hard,'” said Frederick, chuckling at the memory.

Twenty-one years and 49 arguments later, Frederick marks the 50-argument milestone this morning in China Agritech v. Resh, in which he represents a group of securities class action plaintiffs.

“I think I have become even more respectful of the process by virtue of having gotten to do it a lot of times,” said Frederick about oral arguments. “The different ways that a case can turn are sometimes hard to appreciate unless you really are immersed in the details of it. The challenge of seizing an opportunity that may or may not present itself and then figuring out what can I do with this in the moment is exciting and very challenging. You look back and think, 'I wish I could have done that a little better.' The moment is fleeting; it's very fragile.”

A court of appeals argument is a “more fixed kind of advocacy,” said Frederick, author of two books on oral advocacy. The arguments focus on the facts and the record and what the law is. But in the Supreme Court, he added, argument is so much about the next case, what should the law be, what is the principle, and what is the limit to the principle.

The current court is known as a “hot bench” because of the number of questions by the justices. But Frederick said he thinks it may have been “a little bit hotter” when he began in 1997. He recalled one argument where he faced 93 questions in 30 minutes. “I've never even gotten close to that since,” he said.

Frederick specializes in plaintiffs cases. One case that he counts as most memorable was Wyatt v. Levine. He successfully argued on behalf of a violinist who lost her hand and forearm after being injected with a drug that had an inadequate warning label.

“It was an emotionally challenging case because my client had suffered so much and it was a challenging argument,” he recalled. “I've had other cases for other sympathetic clients that I was not able to turn around.”

The China Agritech case is Frederick's second argument this term. In February, he argued in defense of union “fair share” fees in Janus v. AFSCME.

“I've really been blessed by being in a firm with relatively few conflicts and an extra-high caliber of colleagues to help me with these hard case,” he said.

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Recusal Report: Better Late Than Never

The announcement on Friday that Justice Anthony Kennedy was bowing out of participation in the case of Washington v. United States, set for argument April 18, was unusual on several levels.

➤➤ First, the fact that the court, in the form of a letter from court clerk Scott Harris to the parties involved, publicly explained why Kennedy was now recusing in a case that was granted January 12, with Kennedy participating.

➤➤ Second, the reason itself as described in the letter was a stunner: “Justice Kennedy learned recently that, while serving as a judge on the Ninth Circuit Court of Appeals, he participated in an earlier phase of this case. The ordinary conflict check conducted in Justice Kennedy's Chambers inadvertently failed to find this conflict.”

With new justices who previously served in appeals courts, we're accustomed to recusals caused by their earlier involvement in cases now before the high court. Justices Samuel Alito Jr., Sonia Sotomayor, and Neil Gorsuch occasionally recuse for that reason, even though they are roughly 12, eight, and one years past their appeals court gigs, respectively. Chief Justice John Roberts Jr. has also recused in cases that date back to his days as a partner at Hogan Lovells, and Justice Elena Kagan still takes a pass in cases that passed through the solicitor general's office when she was SG eight years ago.

But the last time Kennedy penned a Ninth Circuit opinion was 30 years ago, and the Harris letter indicated that the Ninth Circuit ruled on the “earlier phase” of the Washington v. United States case, a dispute over tribal treaty rights for northwest Indian tribes, in 1985—33 years ago. Must be a world record.

ICYMI: Brad Meltzer, Peter Stris & More

⬥ Best-selling author and Columbia law grad Brad Meltzer talks about SCOTUS clerks, lawyering and his new book.

⬥ Here is how veteran Supreme Court advocate Peter Stris of the Los Angeles boutique Stris & Maher became counsel to former Playboy model Karen McDougal, who alleges an affair with President Donald Trump over a decade ago.

⬥ Justice Ruth Bader Ginsburg and Supreme Court advocates answer Stephen Colbert's urgent question: Is a hot dog a sandwich?

⬥ A recent memorandum from the general counsel's office at the National Labor Relations Board identified 152 cases awaiting the Supreme Court decision in a trio of cases involving class action bans in worker arbitration agreements. Of those, 52 are on hold in appeals courts around the country.

Thanks for reading Supreme Court Brief—and we welcome any feedback and tips. Or just say hi.

—Marcia and Tony