Blawgletter®

Cuomo Whips Comptroller in Supreme Court on Bank Oversight -- and Vice Versa

 
The Supreme Court of Minnesota.  (It will make sense if you read the whole post.)

Blawgletter has heard, and sometimes says, that such and such beats a poke in the eye with a sharp stick.  The phrase applies to a U.S. Supreme Court ruling yesterday on state power over national banks.

The 5-4 decision pivoted on what "visitorial powers" means.  The U.S. Office of the Comptroller of the Currency sued to stop the attorney general of the Empire State from asking national banks to hand over info on their compliance with New York banking law.  The Comptroller cited a statute that barred states from flexing "visitorial" muscles. 

The Court (per Justice Scalia) held that visitorial powers enable an overseeing authority -- such as a board of trustees or a state that breathes life into legal fictions like corporations -- to pry and fuss and vex the visitee even if the subject of the visiting has done nothing unlawful.  But powers visitorial differ from run of the mill law enforcement.  The statute keeps states from using their inherent authority to pry but not from suing to enforce their laws.  Cuomo v. Clearing House Assn., L.L.C., No. 08-453 (U.S. June 29, 2009).

The liberals joined Justice Scalia.  The other conservatives -- plus Justice Kennedy -- not so much.

 Our feed hopes you'll visit often.

Bonus:  The Minnesota Supreme Court poked Norm Coleman in the eye with a sharp stick.  Unanimously.

Supremes Lasso Another Antitrust Case

Boy howdy.  This Supreme Court just can't get enough antitrust.  Yesterday, it granted review of yet another Sherman Act decision -- one that Blawgletter deemed "silly". 

As we summarized at the time, the Seventh Circuit "held that a professional sports organization enjoys antitrust immunity when its members jointly strive to exploit intellectual property that the league's very existence makes valuable.  'Simply put', the court simply put its ruling, 'nothing in section 1 [of the Sherman Act] prohibits the NFL teams from cooperating so the league can compete against other entertainment providers.'  Am. Needle Inc. v. Nat'l Football League, No. 07-4006, slip op. at 17 (7th Cir. Aug. 18, 2008)."

We suppose the Supreme Court agrees with our Dim View of Am. Needle v. NFL.  That might explain why Their Honors rejected the Antitrust Division's advice not to grant cert, despite the "problematic" features of the Seventh Circuit decision.

By the way, Judge Sonia Sotomayor sat on a panel that decided a similar case, Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290 (2d Cir. 2008).  But, unlike Am. Needle, Salvino didn't treat a league of professional sports teams as a single firm.  She wrote a concurring opinion in which she offered an "ancillary restraints" analysis of the case rather than the majority's "overly formalistic view of price fixing".

Who Will Speak for the Deep Pockets (That Enabled Bernie Madoff)?

A federal judge today sentenced Bernard Madoff to 150 years in a place where he can think about the men, women, children, charities, museums, and clubs he took billions from.

The event puts Blawgletter in mind of Dante, whose Divine Comedy consigned fraudulent advisors to the eighth -- next-to-last -- circle of Hell.  (Satan himself occupied the bottom-most ninth.)

But a cruel reality intrudes on Judge Denny Chin's ruling -- the fact that a great many people lost life savings because they trusted Mr. Madoff and his helpers.  A $60 billion plus fraud couldn't last without aid and support from those enablers, who profited from their fiduciary crapulence.

Where can victims -- including a 60-plus woman who now eats sometimes out of a dumpster -- turn?

Critics of tort liability would say too bad, so sad -- leave the "deep pockets" alone.  God forbid suing someone less culpable because that someone can pay damages.

 Poor things.

White Firefighthers Win Title VII Suit in Supreme Court

The U.S. Supreme Court today held that New Haven violated Title VII of the Civil Rights Act of 1964 by ignoring test results in deciding which firefighters to promote.  The city could not justify promoting black firefighters ahead of whites and Hispanics by citing fear of a "disparate impact" lawsuit under Title VII.

[T]he City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discrimnatory alternative that served the City's needs but that the City refused to adopt. . . . We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects.

Ricci v. DeStefano, No. 07-1428, slip op. at 28 (U.S. June 29, 2009).

Justice Kennedy wrote the majority opinion, in which Chief Justice Roberts and Justices Alito, Scalia, and Thomas joined.  Justices Breyer, Souter, and Stevens joined in Justice Ginsburg's dissent.

 Our feed crosses the Quinnipiac.

Quote of the Day: Henry Louis Gehrig

 
The Iron Horse took himself out of the lineup in what would have been his 2,131st consecutive game.

Fans, for the past two weeks you have been reading about the bad break I got. Yet today I consider myself the luckiest man on the face of this earth. I have been in ballparks for seventeen years and have never received anything but kindness and encouragement from you fans.

Look at these grand men. Which of you wouldn't consider it the highlight of his career just to associate with them for even one day? Sure, I'm lucky. Who wouldn't consider it an honor to have known Jacob Ruppert? Also, the builder of baseball's greatest empire, Ed Barrow? To have spent six years with that wonderful little fellow, Miller Huggins? Then to have spent the next nine years with that outstanding leader, that smart student of psychology, the best manager in baseball today, Joe McCarthy? Sure, I'm lucky.

When the New York Giants, a team you would give your right arm to beat, and vice versa, sends you a gift - that's something. When everybody down to the groundskeepers and those boys in white coats remember you with trophies - that's something. When you have a wonderful mother-in-law who takes sides with you in squabbles with her own daughter - that's something. When you have a father and a mother who work all their lives so you can have an education and build your body - it's a blessing. When you have a wife who has been a tower of strength and shown more courage than you dreamed existed - that's the finest I know.

So I close in saying that I may have had a tough break, but I have an awful lot to live for.

Lou Gehrig, July 4, 1939, Yankee Stadium.

ID of Party to Arbitration Pact Doesn't Matter, Texas Supremes Hold

Employee hurt her back at work.  She later signed a one-page "Arbitration Acknowledgment".  It called for arbitration of disputes "with your particular employer."  Later still, employee sued Macy's Texas, Inc. 

Macy's Texas moved to compel arbitration.  Employee replied that the one-pager didn't identify Macy's Texas as a party to the Acknowledgment and that it instead listed other companies -- "Federated Department Stores, Inc., Macy’s West, Inc., and Federated Systems Group, Inc."

The Supreme Court of Texas today held the non-specification of the actual employer as a party to the arbitration agreement didn't matter.  Employee, the court concluded, "cannot avoid arbitration by raising factual disputes about her employer's correct legal name."  In re Macy's Texas, Inc., No. 08-0584 (Tex. June 26, 2009) (per curiam).

Something bothers Blawgletter about the decision.  It looks sloppy.

What if you had a contract to buy toothpicks?  The agreement says you'll purchase the goods from "your particular vendor" and names three possibilities.  An "assistant manager" signs, but he likewise doesn't specify for which legal entity he does so.  Later, the toothpicks don't show up on time, or they have splinters, or they otherwise don't comply with the deal.  Who can you sue?

The court's per curiam logic would say you can bring suit against any entity that (a) belongs to the same corporate family as the three potential toothpick suppliers and (b) you name in your petition as the "particular vendor".

The defect in our view didn't involve a question of an "employer's correct legal name."  It instead concerned a basic failure to agree on who the contract binds.  The case should have turned on whether the actual defendant also in fact employed the plaintiff.

We concede that the court might have decided the mandamus under the doctrine of equitable estoppel, which allows non-signatories of arbitration agreements to enforce them.  But it didn't.  Sloppy.

Our feed obeys the second rule of Fight Club.

Supremes Allow Punies for Seamen and Cross-X of Lab Test

 
Cocaine -- or just stuff that looks like it?

The U.S. Supreme Court didn't decide any business cases today, but two of the appeals it did rule on bear some kinship to matters commercial.

The first involved whether general maritime law allows seamen to get punitive damages.  The Court said yes.  Atl. Sounding Co. v. Townsend, No. 08-214 (U.S. June 25, 2009).  Justice Thomas, who doesn't believe the Constitution limits punitive awards, wrote the opinion for the Court.  Chief Justice Roberts and Justices Alito, Kennedy, and Scalia dissented.

The other ruling dealt with a "confrontation" right under the sixth amendment -- whether a criminal defendant may cross-examine the preparer or certifier of a lab report.  The test results in question deemed plastic bags that police found on the defendant's person to contain "cocaine".  The Court held an analyst's certification of the report "testimonial".  It distinguished affidavits that merely authenticate business records and the like, noting:

Respondent also misunderstands the relationship between the business-and-official-records hearsay exceptions and the Confrontation Clause.  As we stated in Crawford:  "Most of the hearsay exceptions covered statements that by their nature were not testimonial -- for example, business records or statements in furtherance of a conspiracy."  541 U.S., at 56.  Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because -- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial -- they are not testimonial.  Whether or not they qualify as business or official records, the analysts' statements here -- prepared specifically for use at petitioner's trial -- were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.

Melendez-Diaz v. Massachusetts, No. 07-591, slip op. at 18 (U.S. June 25, 2009).  Justice Scalia wrote the majority opinion, in which Justices Ginsburg, Souter, Stevens, and Thomas joined.

Our feed wonders who dissented.

Bonus:  Blawgletter saw Justice Scalia a Few Short Hours after posting.  We mentioned the money quote -- "the best indication that the sky will not fall after today's decision is that it has not done so already" -- and he said "five-four, can you believe it?"  Yes.  Yes, we can.

Does a Share in a Ponzi Scheme Count as a "Security"?

Yes.  Warfield v. Alaniz, No. 07-15586 (9th Cir. June 24, 2009).

Cristal v. Cristalino: Et Tu, Brut?

 
The Champagne wine region, en rouge.

Champagne, Blawgletter hears, comes only from France.  Nor may it hail from just any old spot within the domain of Marianne.  Non!  Absolument pas!  It must originate from -- certainement! -- either of two splotches in the northeast.

Which may help explain why the Gallic maker of "Cristal" Champagne sued a Spanish wine-maker for calling its Cava -- also a sparkling white wine -- "Cristalano". 

[It does not shed light on why Champagne Louis Roderer filed suit in the great non-wine-making state of Minnesota.]

The district court granted summary judgment for the Spaniards on the ground of laches.  CLR, the court held, waited too long after learning about Cristalano to enforce CLR's Cristal-clear trademark rights. 

The Eighth Circuit reversed.  It concluded that, au contraire, CLR failed to establish its laches defense.  Champagne Louis Roderer v. J. Garcia Carrion, S.A., No. 08-2907 (8th Cir. June 24, 2009). 

Contrast the result with "D.C. Circuit Revives "Redskins" Trademarks; Laches v. Estoppel".

 Our feed only thinks it knows what sacre bleu means.

JPML Roundup (Update)

The Judicial Panel on Multidistrict Litigation has issued 24 25 Transfer Orders from its two-day session last month in Louisville, Kentucky. 

District courts with "Southern" in their names triumphed, getting 10 of the 24 25 MDL matters.

By transferee district, here you go:

Northern District of California

MDL No. 2040, In re ConocoPhillips Co. Service Station Rent Contract Litig.

District of Colorado

MDL No. 2063, In re Oppenheimer Rochester Funds Group Securities Litig.

Southern District of Florida

MDL No. 2036, In re Checking Account Overdraft Litig.

MDL No. 2051, In re Denture Cream Products Liability Litig.

MDL No. 2057, In re Kaplan Higher Education Corp. Qui Tam Litig.

Northern District of Georgia

MDL No. 2035, In re RBS WorldPay, Inc., Customer Data Security Breach Litig.

MDL No. 2037, In re Air Crash Over Makassar Strait, Sulawesi, Indonesia, on January 1, 2007

Northern District of Illinois

MDL No. 2031, In re Dairy Farmers of Am., Inc., Cheese Antitrust Litig.

Southern District of Indiana

MDL No. 2055, In re Zimmer Holdings, Inc., Securities, Derivative and Employee Retirement Income Security Act (ERISA) Litig.

Eastern District of Louisiana

MDL No. 2047, In re Chinese-Manufactured Drywall Products Liability Litig.

Eastern District of Michigan

MDL No. 2042, In re Refrigerant Compressors Antitrust Litig.

District of Minnesota

MDL No. 2059, In re Activated Carbon-Based Hunting Clothing Marketing and Sales Practices Litig.

Southern District of New York

MDL No. 2030, In re Merrill Lynch & Co., Inc., Auction Rate Securities (ARS) Marketing Litig.

MDL No. 2043, In re Citigroup, Inc., Auction Rate Securities (ARS) Marketing Litig.

MDL No. 2052, In re Tremont Group Holdings, Inc., Securities Litig.

MDL No. 2058, In re Bank of Am. Corp. Securities, Derivative and Employee Retirement Income Security Act (ERISA) Litig.

Northern District of Ohio

MDL No. 2044, In re Vertrue Inc. Marketing and Sales Practices Litig.

MDL No. 2066, In re Oral Sodium Phosphate Solution-Based Products Liability Litig.

Southern District of Ohio

MDL No. 2050, In re Bill of Lading Transmission and Processing System Patent Litig.

Western District of Oklahoma

MDL No. 2048, In re Cox Enterprises, Inc., Set-Top Cable Television Box Antitrust Litig.

District of Oregon

MDL No. 2053, In re Helicopter Crash Near Weaverville, California, on August 5, 2008

Eastern District of Pennsylvania

MDL No. 2034, In re Comcast Set-Top Cable Television Box Antitrust Litig.

Western District of Pennsylvania

MDL No. 2056, In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litig.

District of South Carolina

MDL No. 2054, In re LandAmerica 1031 Exchange Services, Inc., Internal Revenue Service 1031 Tax Deferred Exchange Litig.

Southern District of Texas

MDL No. 2046, In re Heartland Payment Systems, Inc., Customer Data Security Breach Litig.

The Panel will hear its next round of cases on July 30 in Portland, Oregon.

"Western" courts finished last.