The justices are back on the bench this morning for their first arguments of the new year. In one of those arguments, two veteran advocates face off for an unusual fourth time. We speak with one of them about their serial pairing. And a longtime foe of class actions is spreading his wings to take on new litigation targets. The justices may have the first decisions of 2019 tomorrow morning, so stay tuned. Thanks for reading Supreme Court Brief. We welcome comments and newsworthy tips about what you or colleagues are doing at [email protected] and [email protected].

 

Friendly Adversaries Meet Again

 

The lawyers who will be arguing against each other in today's second case, Obduskey v. McCarthy & Holthus, are no strangers to each other.

Daniel Geyser of Geyser P.C. and Williams & Connolly's Kannon Shanmugam have argued on opposite sides before the high court three times in the last two years, and Obduskey will be the fourth—and the second this term.

It would be hard to track down, but that's probably an unusually high level of pairing at the lectern. (Are there other serial adversaries out there? Please let us know.)

Dan Geyser

And it's not entirely coincidental. Lawyers who develop an expertise in one area tend to get asked to argue again when the issue pops up again. The first time Geyser and Shanmugam were adversaries was at the January 2017 argument in Midland Funding v. Johnson, a Fair Debt Collection Practices Act case. That same law is the topic at issue in today's Obduskey argument.

Shanmugam and Geyser have developed a friendship even though they are on opposite sides, says Geyser. “Kannon is a rare and special talent. His work is superb—always. And even though we're often adversaries at the court, I'm very lucky to count him as a friend outside the building.”

Geyser added, “I can also say our repeated encounters are not by design. If you're looking for easy wins, going up against Kannon is the wrong way to do it.”

Shanmugam expressed similar admiration: “I'd say Dan is a rising star, but his star has now been risen for some time. And I'd say I'm looking forward to arguing against Dan again, but I'd look forward to it more if he weren't so good at what he does. He is an outstanding lawyer and, more importantly, a wonderful person.”

On Friday, Geyser picked up two more cases to argue, probably this this term, among the cert grants announced by the court: Emulex Corp. v. Varjabedian, a securities case, and Taggart v. Lorenzen, a bankruptcy dispute. So far, Shanmugam is not listed as opposing counsel in either case.

 

New Public Interest Firm with Eye on SCOTUS

 

Ted Frank, head of the Center for Class Action Fairness, in October argued his own case in the Supreme Court—a challenge to “cy-pres only” settlements in Frank v. Gaos. Later this month, Frank officially leaves his home at the Competitive Enterprise Institute (CEI) to direct litigation at his new nonprofit, public interest law firm—the Hamilton Lincoln Law Institute.

“Alexander Hamilton and Abraham Lincoln were not only great Americans, but great litigators,” Frank said.

Frank said he won't abandon what he believes are abusive class actions, but he will broaden his litigating targets to include the areas of free speech, free markets, limited government, separation of powers, perceived regulatory abuses and animal welfare.

“CEI is a think tank that happens to have some lawyers also doing litigating,” Frank said. “They do lots of different things. We were a small part of a much larger organization. We wanted to expand and now we are focused on litigation. We're hoping to build off of Frank v. Gaos.”

Melissa Holyoak will be president and general counsel of the new organization. Holyoak was senior attorney at the class action center. Frank also will be joined by former CEI attorneys Anna St. John, Adam Schulman and Frank Bednarz.

The Center for Class Action Fairness merged with CEI in 2015 after nearly a decade on its own. CEI president Kent Lassman said he looks forward to continued collaboration with the new organization.

Frank continues to have his eye on the Supreme Court, which in November called for additional briefing in his cy pres case on the standing question. So-called “cy pres” payments are funds that are given to persons or entities that are not direct parties to the dispute. “I will have another cert petition next month on cy pres if for some reason the Supreme Court is reluctant to decide this one on standing grounds,” he said.

 

Supreme Court Headlines: What We're Reading

 

>> Verrilli gets the call: Nearly six years after defending the Affordable Care Act at the Supreme Court, former U.S. Solicitor General Donald Verrilli, now a partner at Munger, Tolles & Olson, got the call from the U.S. House to defend the law in court. [NLJ]

>> Trump still doesn't have his wall: President Donald Trump expressed confidence last week that the U.S. Supreme Court will act in his favor on upcoming litigation to end DACA, a move that he said will help him negotiate with Democrats over funding the border wall. [NLJ]

>> 'FUCT' up for argument: The justices said Friday they'd look at whether the U.S. Patent and Trademark Office can refuse to register the Fuct mark for a line of apparel. At issue is a 113-year-old statutory provision that prohibits registration of “immoral” or “scandalous” trademarks. [NLJ]

>> Big Law against the ban: Teams from Kirkland & Ellis, Latham & Watkins and Wilmer Cutler Pickering Hale and Dorr are fighting the Trump administration's transgender-troop ban. [NLJ]

>> Back again: The U.S. Supreme Court will hear two partisan gerrymandering cases: a North Carolina case spearheaded by Atlanta attorney Emmet Bondurant and the Maryland case that inspired it. [NLJ]