Welcome to Supreme Court Brief. The justices are back on the bench for the first time in the new year. This morning they take up a law critical to employers and employees—ERISA. We look at the players and what's at stake. The January argument session continues with a trend of few female advocates appearing at the lectern, but the session is rich with former Supreme Court clerks. Scroll down for headlines, including reporting on the Justice Department asking the court not to rush its consideration of the big Fifth Circuit Obamacare case.

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 Returns for Third Time This Term

The justices continue their fascination with all things ERISA this morning as they hear arguments in the third of a quartet of cases this term involving the Employee Retirement Income Security Act. In the case Thole v. U.S. Bank N.A., James Thole and Sherry Smith, participants in a defined benefit plan, ask the justices if they can sue plan fiduciaries for mismanaging assets without showing individual financial loss or imminent risk of loss. And, do they have Article III standing?

In November, the justices heard arguments in Retirement Plans Committee of IBM v. Jander. The second ERISA case was heard in December: Intel Corp. v. Sulyma. No decisions yet. The justices on Jan. 10 granted review in Rutledge v. Pharmaceutical Care Management, an ERISA preemption case involving Arizona regulation of pharmacy drug reimbursement rates. Nicholas Bronni, the Arkansas solicitor, is counsel of record on the petition. McDermott Will & Emery's Michael Kimberly is counsel of record to the respondents.

Thole and Smith sued after plan fiduciaries invested all of the plan assets in high-risk equities that caused $748 million in losses. After they sued, U.S. Bancorp made additional contributions which moved the plan out of its underfunded status to overfunded.

The U.S. Court of Appeals for the Eighth Circuit in 2017 affirmed dismissal of the plaintiffs' claims because they had not yet suffered an individual financial harm and the plan had enough assets to avoid imminent risk.

Stris & Maher partner Peter Stris, counsel to Thole, argues that trust law "shows that participants have a concrete interest in the proper management of all plan assets and suffer real harm when a fiduciary breaches his duties. And for centuries, trust law has allowed beneficiaries to sue without showing personal financial loss."

The Eighth Circuit decision, he adds in his brief, "would give fiduciaries carte blanche to treat plan assets as their personal piggybank, as long as they leave enough to keep paying benefits." On the brief with Stris is Karen Handorf of Cohen & Milstein.

Stris will face off with Morrison & Foerster partner Joseph Palmore, who calls the case "an abstract (yet costly) dispute." The investment practices that Thole challenges, argues Palmore, ended nearly a decade ago. On the brief with Palmore is Dorsey & Whitney partner Stephen Lucke.

"This case's outcome does not matter to Plaintiffs," Palmore told the justices. "They challenge investment decisions Plan fiduciaries made regarding Plan assets. But Plaintiffs' benefits are fixed. Win or lose, Plaintiffs will receive the exact same pension payments for the rest of their lives. The only individuals who would come out ahead are Plaintiffs' attorneys—who have requested $31 million in fees."

Thole's position is supported in amicus briefs by the United States, Public Citizen Litigation Group (Public Citizen's Nandan Joshi, counsel); Pension Rights Center (Elizabeth Hopkins of Kantor & Kantor, counsel); Law Professors (Ellen Riley of Keller Rohrback, counsel) and AARP (Dara Smith of AARP Foundation, counsel).

U.S. Bank has drawn supporting amicus briefs from the U.S. Chamber of Commerce (Mayer Brown partner Andrew Pincus, counsel); New England Legal Foundation (Foundation's Benjamin Robbins, counsel) and Washington Legal Foundation (Foundation's Richard Samp, counsel).

The U.S. Solicitor General has been granted 10 minutes of Stris's argument time.

—Marcia Coyle

 

Former Clerks (And Only a Few Women) Prepare for New Argument Cycle

Only two of the 20 lawyers scheduled to argue in the upcoming cycle are women, and both advocates come from private practice. Twelve of the 20 advocates set to appear soon are former Supreme Court clerks, with six of those 12 having served the late Justice Antonin Scalia.

Kirkland & Ellis partner Dale Cendali will be first at the podium this morning for Lucky Brand Dungarees in the case Lucky Brand Dungarees v. Marcel Fashions Group. Cendali heads Kirkland's copyright, trademark, internet and advertising practice group. Cendali (above on the left) leads a primarily female practice group. Seen above, left to right after Cendali: Kirkland lawyers Shanti Conway, Claudia Ray and Mary Mazzello.)

Cendali is making her second high court argument. Her first was 17 years ago—in 2003 on behalf of Twentieth Century Fox in the case Dastar v. Fox, a copyright and Lanham Act case involving General Dwight D. Eisenhower's acclaimed memoirs. Ray, a partner in Kirkland's New York office, and Mazzello, also a partner in New York, were on the petition with Cendali. Cendail will face McDermott Will & Emery partner Michael Kimberly, counsel to Marcel.

On Tuesday, Williams & Connolly partner Lisa Blatt returns for her 39th argument in Romag Fasteners v. Fossil Inc. She served as a clerk in the chambers of Justice Ruth Bader Ginsburg. Her opponent is Hogan Lovells partner Neal Katyal, counsel to Fossil.

Morrison & Foerster partner Joseph Palmore, a former Ginsburg clerk, will argue the second case of the new year—Thole v. U.S. Bank N.A.—against Stris & Maher partner Peter Stris, counsel to Thole.

Who are those six former Scalia clerks in this argument cycle? They are: U.S. Solicitor General Noel Francisco; Jenner & Block partner Adam Unikowsky; Jones Day partners Shay Dvoretzky and Yaakov Roth, and Assistants to the Solicitor General Jonathan Bond and Sopan Joshi (also clerked for Justice Samuel Alito Jr.).

Rounding out the remaining former clerks are Deputy Solicitor General Jeffrey Wall (Justice Clarence Thomas); Latham & Watkins partner Roman Martinez and Assistant to the Solicitor General Jonathan Ellis (Chief Justice John Roberts Jr.), and Assistant to the Solicitor General Eric Feigin (Justice Stephen Breyer).

—Marcia Coyle

Harvard Law Review Posts Tributes to JPS

The editors of the Harvard Law Review recently posted a collection of tributes to the late Justice John Paul Stevens, who died in July at age 99. Read the full post here. A few snippets from the collection, featuring reflections from former Stevens clerks, appear below.

>> Eduardo Peñalver of Cornell Law School: "Justice Stevens, the temperamentally humble, midwestern Republican who was appointed by a Republican president, confirmed by a unanimous Senate, and took each case as it came to him, presents us with an appealing model of judicial fairness and consistency in the face of a changing Court and a polarized nation that sometimes seems to have left such ideals behind."

>> Judge Allison Nathan of the Southern District of New York: "[P]erhaps the most important judicial lessons I learned from Justice Stevens involved his fundamental approach to cases. Focus first and foremost on the facts. Faithfully apply precedent. Be intellectually honest and analytically rigorous. Think through the practical consequences of a holding. And, most importantly, decide cases independently and impartially."

>> Christopher Eisgruber, president of Princeton University: "JPS's aspirational commitment to robust conceptions of equality and civil rights made him seem liberal, and his love for American traditions and institutions made him seem conservative. The combination of the two made him different from many of his colleagues, and aloof from the dominant ideological trends on the Court, at least through the late 1980s."

Supreme Court Headlines: What We're Reading

>> On Obamacare, Trump's DOJ Tells Supreme Court There's No Rush. The Trump administration on Friday urged the U.S. Supreme Court to reject efforts by the U.S. House and others who want the justices to move quickly to review a federal appeals court decision that struck down the Affordable Care Act's individual mandate. Read the Justice Department's filing here. [NLJ]

>> How Ruth Bader Ginsburg Is Trying to Check the Conservative Majority. "The 86-year-old four-time cancer survivor has resumed an active role in oral arguments and is often the first of the nine justices to pose a question. She regularly asks whether the Supreme Court should even decide the legal issue before it. By framing the debate in this way, Ginsburg could limit the five conservative justices from setting new precedent over the dissent of the court's four liberals." [CNN]

>> Some Harvard Law School Students Are Avoiding Applying to Clerkships With Trump-Appointed Judges. "As Trump reshapes the federal judiciary with staunch conservative and controversial picks, some Harvard Law School students appear to be thinking twice about applying for clerk jobs with them, and passing up what are generally considered plum positions." [Boston Globe]

>> Inside Antonin Scalia's FBI File. The 483 pages of documents posted this month on the FBI's online vault also reveal communications about a possible ethics investigation in 1993 and a purported death threat in 2006 from someone who called Scalia an "anti-Christ." [NLJ]

>> Supreme Court Justice Sonia Sotomayor Delivers Personal Message to SF's New DA, Chesa Boudin. "Your personal strength and commitment to reforming and improving the criminal justice system is a testament to the person you are and the role model you will continue to be for so many," Sotomayor said in a message to Boudin. [S.F. Chronicle]

>> Justice Dept. Drops SCOTUS Review in Case Against TSA. The U.S. Justice Department will allow a long-running tort suit against the TSA to proceed, after declining to pursue a petition in the high court challenging an en banc Third Circuit decision that went against the government. [NLJ]

Impeachment

>> At Impeachment Trial, Chief Justice Roberts May Have More Prestige Than Power. "Under Senate rules, it is the senators themselves who have the first and last word. They establish the procedures for the trial and can, by majority vote, overturn any of the chief justice's rulings. The extent of the chief's powerlessness was driven home to Chief Justice William Rehnquist at the beginning of President Bill Clinton's Senate impeachment trial in 1999." [NPR]

>> Chief Justice Roberts Faces Challenge in Navigating Senate Impeachment Trial. "Given the lack of a bipartisan agreement in the Senate, Roberts may find himself nevertheless called upon to weigh in on the most difficult questions, including whether witnesses will testify." [Los Angeles Times]

>> Why Kind of Trial Awaits President Trump in the Senate? "Once the articles of impeachment are transmitted to the Senate, disputes over fairness in the impeachment trial will mostly be decided by majority rule." [FiveThirtyEight]