The justices today are set to wrap up December's argument session, perhaps in anticipation of their long winter's break. A Gibson Dunn partner and the Arizona solicitor general make their first Supreme Court arguments in two different and difficult cases. After a victory in the Supreme Court in 2016, a Jenner & Block team wins more than $3 million in fees against the EEOC. Plus, the constitutionality of the Telephone Consumer Protection Act is the target of recent petitions filed by Facebook and others. 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.

 

A Week of Supreme Court Debuts

More first-time advocates week will make their arguments at the Supreme Court this morning as Gibson, Dunn & Crutcher partner Amir Tayrani and Arizona Solicitor General Oramel Skinner appear in two very different cases.

Two other first timers argued Monday in the case Holguin-Hernandez v. United States. Kirkland & Ellis partner K. Winn Allen was the court-appointed amicus defending the Fifth Circuit's ruling. O'Melveny & Myers counsel Kendall Turner represented Gonzalo Holguin-Hernandez.

Tayrani starts the argument session this morning on behalf of American citizen Michelle Monasky in a child custody battle under the Hague Convention in the case Monasky v. Taglieri. Veteran high court advocate Andrew Pincus, partner at Mayer Brown, represents Italian citizen Domenico Taglieri.

Hague Convention cases are always difficult legally and emotionally but the justices are no stranger to the child custody issues they raise. Monasky is trying to get her infant child back after returning her to Italy following rulings against her in Italian and federal courts.

Tayrani (at left) has asked the justices whether the U.S. Court of Appeals for the Sixth Circuit was wrong to use clear error review and not de novo review of the district court's determination of the infant's "habitual residence"—the touchstone for resolving child custody disputes. The dispute tees up how courts should determine an infant's country of "habitual residence." Subjective agreement or actual agreement between the parents?

Tayrani practices in Gibson Dun's litigation and appellate and constitutional law practice groups. Although he is making his first high court argument, he has briefed 19 cases on the merits, including Citizens United v. FEC, Wal-Mart Stores v. Dukes, Daimler AG v. Bauman and Caperton v. A.T. Massey Coal.

Soon after the Hague argument, Skinner, Arizona's top appellate lawyer, takes his turn at the lectern in the capital case McKinney v. Arizona. McKinney, represented by Hogan Lovells partner Neal Katyal, argues he was entitled to resentencing by a jury or in a trial court instead of the independent review conducted by the Arizona Supreme Court. His case, he contends, was not yet final because the state supreme court reopened it to reconsider his sentence.

Skinner joined the Arizona attorney general's office in 2016 serving in senior roles in the civil litigation division. Before that, he was at Wilmer Cutler Pickering Hale and Dorr and Ropes & Gray. In addition to serving as solicitor general, Skinner leads the office's class action fairness practice and is chief of the special litigation section. —Marcia Coyle

 

Jenner Secures Fees (Again) in EEOC Case

The EEOC on Tuesday lost its latest bid to prevent the U.S. government from paying millions of dollars in legal fees to the firms Jenner & Block and Simmons, Perrine, Moyer & Bergman in a long-running dispute involving alleged discrimination. After three appeals and a trip to the U.S. Supreme Court, a new panel decision confirms the EEOC is on the hook to pay more than $3.3 million in fees to the two firms.

"After more than five years of litigation on liability issues, including more than 150 depositions, six summary judgment motions, seven liability rulings by the district court, two appellate rulings by this court, and a trip to the United States Supreme Court, EEOC had only a single claim that had not been dismissed," CRST's lawyers told the Eighth Circuit last year.

The 2016 Supreme Court ruling in CRST's favor was a big win for the business community. As our Tony Mauro put it then: "In a ruling that could mean more attorney fee awards for employers in workplace discrimination cases, the U.S. Supreme Court said defendants don't have to win on the merits to be counted as the 'prevailing party.' The court's unanimous ruling in CRST Van Expedited v. Equal Employment Opportunity Commission was a victory for the trucking company accused of sexual harassment, and for Paul Smith (at left) of Jenner & Block, who represented the company."

Smith, of course, is no longer at Jenner. In 2017, he took a teaching position at Georgetown University Law Center and joined the Campaign Legal Center as vice president for litigation and legal strategy. That means he is no longer billing $950 an hour, as was his rate in 2016, according to court papers in CRST's push for fees.

The Eighth Circuit panel on Tuesday affirmed that a trial judge had correctly calculated the fees owed to the Jenner team and Iowa-based Simmons, Perrine, Moyer & Bergman.

Overall, the Jenner team, then led by Smith, sought about $645,000 for the Supreme Court litigation. Other 2016 hourly rates, as identified by Jenner in its court papers, included: $875 hourly for senior litigation partner John Mathias Jr.; $725 hourly for James Malysiak, a partner; and $575 hourly for Jessica Ring Amunson, who is now co-chair of the firm's appellate and Supreme Court practice.

"Because Supreme Court work is highly specialized and requires knowledge of the court and Justices, it was reasonable for CRST to retain Paul Smith and his colleagues in Jenner's Washington, D.C. office to represent CRST in the Supreme Court," CRST noted in court filings. —Mike Scarcella

 

Calling on the U.S. Supreme Court

Facebook, Charter Communications and the U.S. Justice Department are separately asking the Supreme Court to jump into the fray over the constitutionality of the Telephone Consumer Protection Act of 1991, one of the most heavily litigated laws today.

The law prohibits telemarketers and debt collectors from making calls using automated telephone dialing systems without consent. There are three exceptions, one of which exempts calls to cell phones made "to collect a debt owed to or guaranteed by the United States." Fines for violations are stiff.

The two companies ask the justices to review Ninth Circuit decisions that struck down the government-debt-collection exception, but not the entire statute, as an unconstitutional content-based regulation of speech.

The Justice Department, which intervened in the Ninth Circuit cases to defend the government exception, has filed its own petition in the case Barr v. American Association of Political Consultants. The Fourth Circuit in that case also struck down the exception and severed it from the statute.

>> U.S. Solicitor General Noel Francisco is urging the justices to grant his petition in the case Barr v. American Association of Political Consultants as the best vehicle to consider the First Amendment and severability issues. Latham & Watkins partner Roman Martinez is counsel to the American Association of Political Consultants.

>> Kirkland & Ellis partner Paul Clement represents Facebook in the case. Noah Duguid, who sued Facebook for sending allegedly unsolicited security text messages, is represented by Sergei Lemberg of Lemberg Law in Wilton, Connecticut.

>> Latham & Watkins partner Richard Bress is counsel to Charter Communications in the case Charter Communications v. Gallion. Public Citizen's Scott Nelson represents Steve Gallion.

The business and credit communities are keeping a close eye on the case. Jones Day partner Shay Dvoretzky has filed an amicus brief supporting Facebook on behalf of the U.S. Chamber of Commerce and Business Roundtable.

Other briefs supporting Facebook were filed by Morrison & Foerster partner Joseph Palmore for the Retail Litigation Center; Dallas's Gray Reed & McGraw partner S. Greg White for ACA International, and Jenner & Block partner Zachary Schauf for Midland Credit Management, among others. —Marcia Coyle

 

Supreme Court Headlines: What We're Reading

•   'What Kind of a Statute Is That?' DOJ Faces Skeptical Supreme Court in $12B Obamacare Dispute. The U.S. Justice Department on Tuesday faced a skeptical U.S. Supreme Court over argumentsthat the government had no obligation to pay $12 billion in losses incurred by insurance companies that agreed to participate in a federal program to provide health insurance for high risk individuals through the Affordable Care Act. [NLJ] More here at Reuters.

•   Supreme Court Risks Creating 'Mutant' CFPB, Law Firm Says. "The U.S. Supreme Court risks creating a "mutant version" of the Consumer Financial Protection Bureau if the justices elect to fix problems with the bureau's constitutionality by changing the director's employment status, a California debt collection firm said." [Bloomberg Law] Read Paul Weiss partner Kannon Shanmugam's brief here.

•   More Gun Cases Waiting in High Court Wings if NY Dispute Flops. "Currently there are several petitions pending at the high court challenging state schemes related to carrying guns outside of the home—concealed or otherwise—including in Maryland, New Jersey, Illinois, Massachusetts." [Bloomberg Law]

•   Georgia Refuses to Release Outside Counsel Contracts and Billing for SCOTUS Copyright Case. The state of Georgia won't publicly release its legal bills or contracts with outside counsel hired to defend the state's claims at the U.S. Supreme Court that its annotated legal code is copyrighted, our colleague R. Robin McDonald reports. Attorneys in the state's Office of Legislative Counsel said they won't release the documents for outside counsel—including Vinson & Elkins—because the Georgia General Assembly is exempt from the state public records statute. That claim is currently being appealed to the state Supreme Court. [Daily Report]

•   Impeachment Is a Political Process, Not a Judicial One. "The fact that impeachment is a political, not a judicial, process does not mean that basic elements of due process are abandoned," professor Alan B. Morrison writes. [NLJ]

•   Supreme Court Justices See No Appeal for Preliminary AIA Review Decisions. "The U.S. Supreme Court sounded ready Monday to rule that U.S. Patent and Trademark Office (USPTO) decisions on the timeliness of administrative patent validity challenges are not appealable to Article III courts." [NLJ]