The first week of the December argument session ends this morning, and another ERISA case—the second of three this term—moves to the fore. Munger, Tolles & Olson partner Donald Verrilli Jr. and Gupta Wessler partner Matthew Wessler face off over the meaning of "actual knowledge" in the law's three-year limitations period. Plus: The high court's new two-minute rule of uninterrupted argument time continues to challenge some justices. And former Deputy Solicitor General Michael Dreeben settles in at O'Melveny & Myers. Thanks for reading, and feedback is always welcome and appreciated. Contact us at [email protected] and [email protected] and follow us on Twitter at @MarciaCoyle and @Tonymauro.

ERISA Challenge Hinges on Meaning of 'Actual Knowledge'

On tap for arguments this morning is the second, and perhaps most significant, of a trio of cases this term involving the Employee Retirement Income Security Act, or ERISA. The justices are being asked to determine the meaning of "actual knowledge" in the law's three-year statute of limitations for suits over breaches of fiduciary duties.

At the lectern in the case Intel Corp. Investment v. Sulyma, will be former Obama Solicitor General Donald Verrilli Jr., partner in Munger, Tolles & Olson, representing Intel, and Matthew Wessler, partner in Gupta Wessler, counsel to Christopher Sulyma.

Sulyma sued the Intel retirement plans, claiming they overinvested in hedge funds and private equity investments which resulted in "massive losses and excessive fees." ERISA has two limitations periods for filing breach of fiduciary duty claims: six years from the date of the last act constituting the breach, or if the plaintiff has actual knowledge of the breach, then three years from the breach of violation.

A federal district court granted summary judgment to Intel after ruling that Sulyma had actual knowledge of the breach more than three years before he filed suit. The court said the plan had sent him documents about the plan's asset allocation and additional information about the hedge fund and private equity investments in online documents.

Sulyma's claim was time-barred, according to the court, even though he had not read or could not recall reading the online documents. The U.S. Court of Appeals for the Ninth Circuit reversed, holding that "actual knowledge" means that "the plaintiff is actually aware of the facts constituting the breach, not merely that those facts were available to the plaintiff."

Here's a brief look at some of the arguments:

>> Verrilli (Intel): "Rather than cabining a plan administrator's potential liability when the administrator has disclosed all relevant information to plan participants, the Ninth Circuit's construction rewards participants who choose to ignore the very disclosures that are intended to enable participants to enforce their rights."

>> Wessler (Sulyma): "What the petitioners are essentially arguing is that plan participants should have acquired actual knowledge of information in the disclosures, so they may be charged with having such knowledge. But that is an argument for constructive knowledge, not actual knowledge."

>> U.S. Solicitor General Noel Francisco (supporting Sulyma): "The court of appeals was correct that the statute 'means what it says.' To trigger Section 1113(2), the plaintiff must have actual knowledge of the breach or violation, not constructive knowledge. That is the plain meaning of the term 'actual' in this context: existing in fact, rather than imputed by law."

>> Gibson, Dunn & Crutcher partner Mark Perry (Chamber of Commerce and other business groups): "The decision breaks with the near-uniform, common-sense rule in numerous federal courts that disclosing information to plan participants gives those participants actual knowledge of the information disclosed…and it threatens to exacerbate the growing trend of meritless litigation against ERISA plans and plan fiduciaries."

>> Dara Smith, AARP Foundation (AARP): "Intel's approach would effectively read the six-year period out of the statute almost entirely by presuming "actual knowledge" any time an employer complies with its disclosure obligations, whether or not a plan participant even actually reviewed the information provided in the disclosure." —Marcia Coyle

Sotomayor Catches Herself Interrupting Blatt

Some justices continue to struggle with a little "judicial restraint" during the high court's new two minutes of uninterrupted time at the start of counsels' arguments.

At Tuesday's arguments in the environmental case Atlantic Richfield Company v. Christian, Justice Sonia Sotomayor jumped the gun as the company's advocate, Williams & Connolly partner Lisa Blatt, was naming three reasons why the court should reverse.

"Ms. Blatt, I've been trying to unpackage this case in my own mind, and I start with the language of the statute," Sotomayor said. "I'm sorry. I interrupted you. Finish."

"No, we're good," said Blatt, as laughter erupted in the courtroom.

"Okay," the justice replied. "I'm sorry."

"No," replied Blatt, who did manage to get in her three reasons before the interruption.

In a recent interview at George Mason University, Justice Elena Kagan said the new two-minute rule "feels like a lot" of time.

"This year I've been watching these people try to fill two minutes of time without interruption and I think we should just do them a favor and interrupt them," Kagan said. "It just gets you in the game right away and gives them something to respond to."—Marcia Coyle

Why Michael Dreeben Picked O'Melveny

Michael Dreeben, a veteran U.S. Supreme Court advocate with 105 oral arguments under his belt, will join O'Melveny & Myers in January as a partner in its appellate and white-collar practices, the firm announced yesterday.

As soon as he left the government, Washington firms with appellate practices viewed the 65-year-old Dreeben as a prize catch.

Why did Dreeben choose O'Melveny? "I called Walter Dellinger, asking him for advice," Dreeben said. "He suggested that I talk to O'Melveny, and the more I learned about the firm, the more engaged and intrigued I became." Dellinger, a former acting U.S. solicitor general, is a partner at O'Melveny.

Dreeben added, "I have a long-standing personal connection with O'Melveny through Walter Dellinger, who was my criminal law professor at Duke Law School and under whom I served when he was acting solicitor general." In a statement Dellinger called Dreeben "one of the finest Supreme Court advocates of his generation and will be a powerful champion for our clients' interests in the most complex appellate and white collar matters."

In explaining his decision, Dreeben pointed to other past appellate experts at O'Melveny, such as Sri Srinivasan and Pamela Harris, both now appeals court judges, and Irv Gornstein, executive director at the Supreme Court Institute at Georgetown.

O'Melveny said that in addition to his appellate work, Dreeben's portfolio will include white-collar, cybersecurity, data privacy and securities litigation, as well as crisis management counsel to boardroom clients. —Tony Mauro

Supreme Court Headlines: What We're Reading

How Far Can Cities Go to Police the Homeless? Boise Tests the Limit. "Dozens of cities have filed briefs backing Boise's position, saying that they are confused as to how broadly the Ninth Circuit ruling applies and that the decision has impeded enforcement of basic health and safety laws. In some cases, the cities contend, the decision has actually made it harder to build housing meant for the homeless." [The New York Times] Boise is represented by a team from Gibson, Dunn & Crutcher, including partners Theodore Olson and Theane Evangelis. The firm has agreed to charge up to $300,000 for the engagement, including any cert grant and argument.

Meet the Constitutional Law Scholars Who Will Help the House Figure Out Impeachment. Stanford Law School's Pamela Karlan (at left), Harvard Law School's Noah Feldman, Michael Gerhardt from the University of North Carolina School of Law, and Jonathan Turley, of the George Washington University Law School, are set to testify at today's impeachment hearing at the House Judiciary Committee, our colleague Jacqueline Thomsen reports. The hearing is titled "The Impeachment Inquiry into President Donald J. Trump: Constitutional Grounds for Presidential Impeachment." [NLJ]

'Compelled to Come Forward': Female Lawyers Urge Justices to Protect Abortion Rights. More than 360 female lawyers, including partners and associates at major U.S. law firms, on Monday shared personal stories about their abortion experiences in a U.S. Supreme Court brief that urged the justices not to restrict access to reproductive health services. [NLJ]

Supreme Court Seems Wary of Disrupting Superfund Cleanup. "The court appeared reluctant to side with the landowners in Atlantic Richfield v. Christian, a major environmental cleanup case that could shake the Superfund program to its core. Justices on both ends of the ideological spectrum seemed troubled by the prospect of hindering landowner rights, but reluctant to interfere with the Environmental Protection Agency's authority." [Bloomberg Law]

'Hidden Behind a Paywall': Justices Weigh Challenge to Copyrighting Georgia's Legal Code. Georgia's four-year fight to stop a California public interest group from making the state's annotated legal code available for free online drew pointed questions from the U.S. Supreme Court this week, our colleague R. Robin McDonald reports. [Daily Report]

DOJ's Legal Counsel Office Picks Up Former US House Lawyer. Kristin Shapiro, a former Williams & Connolly associate, has jumped from the U.S. House general counsel's office to DOJ's Office of Legal Counsel, our colleague C. Ryan Barber reports. [NLJ]