Greetings, Court Fans!

It’s the First Monday in October, the traditional start of a new Supreme Court term. Coinciding with the start of OT24, we’re heralding a new way of delivering our summaries of the Court’s decisions: Welcome to the Supreme Court Update blog, which will combine our usual decision summaries with other news and insights from Wiggin and Dana’s Appellate Practice Group.

We’re coming off a memorable OT23 term. What does OT24 have in store? Well, until recently, not that much, as the Court had only granted cert in 19 cases, few of which were that notable. But on Friday, the Court nearly doubled its caseload for the upcoming term, granting cert in another 15 cases, some of which are a bit more interesting. So what are the highlights so far? In no particular order:

  • Facebook v. Amalgamated Bank (No. 23-980) and NVIDIA Corp. v. E. Ohman J:or Fonder AB (No. 23-970): Two cases that will address pleading issues for private securities-fraud claims. Facebook asks whether a company’s risk disclosure on a SEC 10-K filing is misleading if it fails to warn that the triggering event for a warned-of risk has occurred in the past. And NVIDIA addresses what detail a plaintiff must provide about internal company documents that allegedly contradict the company’s public statements so as to establish scienter.
  • United States v. Skrmetti (No. 23-477): A case asking whether Tennessee and Kentucky laws that prohibit gender-affirming care such as hormone treatments and gender-transition surgeries for transgender individuals under the age of eighteen violate the Equal Protection Clause of the Fourteenth Amendment. The Biden Administration and several private plaintiffs challenged the laws, prevailing (in large part) in the District Court, but losing before a divided panel of the Sixth Circuit. 
  • Dewberry Group, Inc. v. Dewberry Engineers, Inc. (No. 23-900): When a defendant is ordered to disgorge some its profits for trademark infringement under the Lanham Act, can it be ordered to disgorge profits earned by one of its affiliates, which was not named a defendant in the lawsuit? The Fourth Circuit concluded that it can, even if the plaintiff doesn’t establish the elements required to pierce the corporate veil and treat the two entities as alter egos.
  • Kousisis v. United States (No. 23-909): A case asking whether the defendants violated the wire-fraud statute when they obtained local-government contracts requiring them to subcontract a certain percentage of the work to minority-owned businesses but then “awarded” those subcontracts to pass-through entities that didn’t actually do anything.
  • Cunningham v. Cornell University (No. 23-1007): ERISA prohibits ERISA plans from engaging in certain transactions with a “party in interest,” a term that’s very broadly defined. But the circuits have disagreed over what is required to plead a violation of that provision, with some circuits requiring a plaintiff to plead facts suggestive of a breach of fiduciary duty, while others holding that the mere allegation of a contract with a party in interest is enough. This case will settle that split.   
  • FDA v. Wages and White Lion Investments, LLC (No. 23-1038)and FDA v. RJ Reynolds Vapor Co. (No. 23-1187): The 2009 Family Smoking Prevention and Tobacco Control Act empowered the FDA to regulate “new tobacco products.” Using that authority, it has refused to authorize for sale e-cigarette products that taste like candy or other things likely to appeal to kids. The Fifth Circuit held the denial of some of those applications was arbitrary and capricious. Wages and White Lion will consider whether that was so. RJ Reynolds will address whether venue was proper in the Fifth Circuit for one of those challenges, in a case where the manufacturer of the product isn’t based in the Fifth Circuit, so it “manufactured” venue there by joining as another petitioner a local gas station that would sell the disapproved product.
  • Free Speech Coalition, Inc. v. Paxton (No. 23-1122): Texas recently enacted a law requiring websites that publish conduct “harmful to minors” to verify the age of every user before permitting access. A divided Fifth Circuit upheld the law, applying only rational-basis review, not strict scrutiny. The Supreme Court will decide what standard of review applies.  
  • CC/Devas (Mauritius) Limited v. Antrix Corp. Ltd., (No. 23-1201): One for the Foreign Sovereign Immunities Act nerds. To sue a foreign sovereign (or one of its instrumentalities) under the FSIA, the plaintiff has to establish that one of the FSIA’s exceptions to immunity applies. But do you also have to establish that the defendant’s contacts with the United States are sufficient for U.S. courts to exercise personal jurisdiction over the foreign sovereign in that case? Most courts have said no, concluding that foreign sovereigns aren’t “persons” under the Due Process Clause so they’re not protected by its minimum-contacts requirement. But the Ninth Circuit said yes. Who’s right?
  • And McLaughlin Chiropractic Associates v. McKesson Corp. (No. 23-1226): In a declaratory ruling, the FCC determined that online fax services (which send faxes as an email attachment) don’t meet the definition of “telephone facsimile machines” under the Telephone Consumer Protection Act. Can a plaintiff that brought a private civil suit under the TCPA against a company that used such a service collaterally attack the FCC’s ruling in its private suit, or does it need to bring a direct challenge to the FCC under the Hobbs Act? And if it can challenge the ruling now, was the FCC’s decision right? 

Stay tuned for our summaries of these and other decisions throughout the term, and be sure to subscribe to receive alerts when new case summaries are posted. In the meantime, feel free to check back for additional content from across the Appellate Group.