6 Cases We're Watching From the Supreme Court's Latest Conference

ALM Media

Updated Thu, May 10, 2018, 11:38 PM

While the U.S. Supreme Court is cranking out decisions this month and next, the justices also will continue building a docket for the next term and find plenty of fodder, including petitions that involve the Dodd-Frank Wall Street reform law's "anti-spoofing" provision, judicial "takings" and gun rights. Here are some next-term "hopefuls" that the justices considered Thursday during their most recent conference. The court is back on the bench Monday with orders and decisions.

A "spoofing" challenge under Dodd-Frank.

Kirkland & Ellis partner Paul Clement filed a petition on behalf of high-frequency trader Michael Coscia in a challenge to the constitutionality of Dodd-Frank's "anti-spoofing" provision. Clement argues the provision is unconstitutionally vague. “Spoofing” is defined as “bidding or offering with the intent to cancel the bid or offer before execution." A knowing violation is a felony. In 2013, the U.S. Department of Justice brought its first criminal prosecution for spoofing against Coscia, principal of Panther Energy Trading. Coscia was convicted on six counts of commodities fraud and six counts of spoofing. He was sentenced to 36 months in prison, followed by two years of supervised release. From August 2011 to October 2011, Coscia, using a computer program, placed more than 450,000 large orders, and earned $1.4 million as a result of his market manipulations. U.S. Solicitor General Noel Francisco has urged the court to deny review in Coscia v. United States. He argues the U.S. Court of Appeals for the Seventh Circuit correctly upheld Coscia's conviction. The Justice Department also says there is no circuit conflict, and the "novel issues" raised in the petition may arise in other circuits where the Justice Department is currently pursuing other spoofing prosecutions.

GM fights a damages-only retrial.

Erin Murphy.

Clement's Kirkland partner Erin Murphy represents petitioner General Motors, which would like the justices to reverse an Eighth Circuit decision permitting a damages-only retrial in a products liability case against the automotive corporation. Murphy argues in General Motors v. Bavlsik that there is a constitutional presumption against such retrials and the lower courts are divided over the standard to apply to determine when those retrials are constitutional. Her opponent, Jonathan Taylor of Washington's Gupta Wessler, counters that the appellate court applied the correct standard that has existed for nearly 100 years and that court's "fact-bound" holding is unworthy of review. The U.S. Chamber of Commerce, represented by Donald Verrilli Jr. of Munger, Tolles & Olson, and the National Association of Manufacturers, represented by Shook, Hardy & Bacon's Philip Goldberg, have filed amicus briefs supporting General Motors.

"Takings" by federal courts.

A mineral rights fight is the background of a petition that asks the justices to decide whether a federal court decision can constitute a Fifth Amendment taking of private property. Ralph White of New Orleans' White Andrews argued in Petro-Hunt v. United States that the Federal Circuit's conflicting decisions on the issue have created "a legal standard that is incoherent in theory and impossible to apply in practice." The U.S. solicitor general countered that "in the long history of its jurisprudence under the clause, this court has never held that a judicial decision effected a taking of property. And no court has ever held that a federal court decision produced such a result."

Guns are back.

Alan Gura of Gura PLLC, who successfully argued the landmark Second Amendment decision District of Columbia v. Heller is back with a petition also involving gun rights. In Teixeira v. County of Alameda, Gura challenges a county board of supervisors' revocation of a permit to open a full-service gun store. He is asking the justices what standard of review applies to Second Amendment claims and whether the amendment secures a right to sell firearms. Brian Goldman of Orrick, Herrington & Sutcliffe represents the county in opposing review and defending the Ninth Circuit ruling, which affirmed the district court's dismissal of John Teixeira's complaint.

Long waits in abortion case, death penalty.

The May 10 conference was the 12th time the justices have listed Azar v. Garza for review. The petition, filed by Solicitor General Noel Francisco, seeks to vacate a ruling by the D.C. Circuit in the case of a pregnant immigrant teen seeking an abortion. Francisco contends the teen's American Civil Liberties Union lawyers misled the government on the date of her abortion and prevented the government from seeking high court review. He also suggests sanctions against the lawyers. Sidley Austin partner Carter Phillips is counsel to the ACLU in opposing review by the high court. And a direct challenge to the constitutionality of the death penalty—Evans v. Mississippi—was back on the justices' conference list for the ninth time. Mississippi also is the source of a second capital case petition—Jordan v. Mississippi—asking the justices whether awaiting execution for more than 41 years violates the Eighth Amendment "because it fails to serve any legitimate penological purpose."