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A Lawyer’s Guide to Upcoming Supreme Court Term

Oct. 2, 2019, 8:55 AM

The Supreme Court’s upcoming term is shaping up to be an explosive one, with LGBT discrimination, deportation for “Dreamers,” and the Second Amendment all currently on the docket.

But there are also a number of “sleeper cases” on the docket this term that could be deeply significant for the way lawyers practice—from pleading standards to preclusion rules to the availability of statutory resources.

There aren’t a lot of attorneys who practice in the Second Amendment space, said Robin Effron, who teaches civil procedure at Brooklyn Law School.

But any time the court hears a case touching on civil procedure, which are the rules governing legal practice, there’s a potential for “spill over into other areas of the law,” Effron said.

These “bread-and-butter cases” for the Supreme Court often “come up through circuit splits and are really important to the practice of law,” said Hogan Lovells’ Sean Marotta, who practices in the firm’s appellate group.

Statute of Limitations

The court has two cases on the docket so far this term that could affect when plaintiffs, and their lawyers, must file their claims or risk being too late.

Statute of limitation questions often can’t be determined just by looking at the relevant statute, said WilmerHale partner Catherine M.A. Carroll. There are often unanswered questions about when the period begins to run and whether it can be paused for fairness reasons.

The first case, Rotkiske v. Klemm, asks whether the “discovery rule,” a rule that says the statute of limitations period doesn’t begin to run until the plaintiff discovers the wrongful action, applies in Fair Debt Collection Practices Act cases.

The FDCPA is a frequently litigated statute, so the case is important on its own, Carroll said.

But anything the justices say about statutes of limitations in general will go into the body of precedent for other statutes that the court might consider in the future, she said.

In Rotkiske, the lower court took a narrow reading of the statute of limitations, saying it wasn’t tolled despite the fact that the plaintiff didn’t learn about the alleged violation until years after the limitations period had run.

The justices’ reading of the statute of limitations will be a guide for other statutory schemes using similar language.

Similarly, in Intel Corp. Investment Policy Committee v. Sulyma the issue is what an Employee Retirement Income Security Act plaintiff must know in order to start the limitations period.

The lower court set a high bar for proving “actual knowledge,” saying that the plaintiff must have not only known about the underlying conduct, but also that the conduct violated ERISA.

Pleading Standards

Cases dealing with ERISA, the famously complicated statute that governs private retirement plans, often fall way under the radar of the public and even many court watchers, but this term an ERISA case could affect how civil attorneys plead their cases.

Retirement Plans Committee of IBM v. Jander asks what an ERISA plaintiff must include in their stock-drop complaint in order for a case to go forward.

But, as with any case dealing with pleading standards, the case has the potential to extend beyond the context of ERISA, Effron said.

The Supreme Court’s landmark pleading decision in Bell Atl. Corp. v. Twombly has extended beyond its context of antitrust to apply in every case filed in federal courts.

Despite being decided just 12 years ago, Twombly has become one of the most cited Supreme Court cases in history, with nearly 200,000 hits, according to Bloomberg Law research.

The case this term, Jander, is actually a follow-up to a 2014 case, Fifth Third Bancorp v. Dudenhoeffer, which said that a robust pleading standard can be an important mechanism for weeding out frivolous claims.

Tech giant IBM, the target of the ERISA suit, argues that the court below weakened that pleading requirement by allowing the plaintiffs to move forward on the basis of “boilerplate allegations.”

Jander could end up being a peek at what the justices think is the proper level of judicial scrutiny early in the litigation, Carroll said.

Arbitration Agreements

A case that could end up being important for corporate attorneys is GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, said Marotta.

The question is whether, under a UN Convention, a party that wasn’t a signatory to an arbitration agreement may nevertheless compel arbitration where fairness dictates.

This is an issue in the domestic as well as the international arena, Marotta said, and involves really interesting questions about “contract drafting and organization structure.”

What’s often at issue is a corporate family member that wants to remain separate from other corporate entities for some reasons—like liability and taxes—but wants to get the benefits of its affiliates’ arbitration agreements.

It requires corporations, and their lawyers, to walk a really fine line, Marotta said.


Back on the litigation side, a trademark case, Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, could have a dramatic effect on how lawyers think about what’s coming down the road in future litigation between the same parties, Carroll said. In particular, whether actions and inactions in a previous case could tie your client’s hands in later litigation.

The case centers on a decades-long trademark dispute between two apparel brands involving several rounds of litigation.

Such repeat litigation can cause “preclusion” problems for the plaintiff that can inhibit the plaintiff from relitigating certain issues that have already been decided, or that could have been decided if they were raised.

Issue preclusion, or res judicata, is an established doctrine in U.S. litigation. But the Second Circuit in Lucky Brands created a kind of defense preclusion, Carroll said.

The court below refused to allow the defendant to raise defenses that could have been, but were not, raised in previous litigation.

The decision was surprising, Carroll said.

If the Supreme Court were to uphold that ruling, it’s possible that defense attorneys may feel compelled to throw the kitchen sink at the plaintiff’s claims early in the litigation.

But even if the Supreme Court ends up reversing the lower court’s ruling, it will say something in general about the nature of preclusion that will be valuable for all types of litigation, Carroll said.

Text of Statutes

A case from the 11th Circuit could actually affect whether annotations explaining statutes are available to lawyers—publicly or perhaps at all.

Such annotations help attorneys interpret statutes and are available on many legal research platforms. They’re often prepared by private publishers, said Arnold & Porter partner John Elwood, who represents Georgia in the case before the Supreme Court.

Content created by private publishers would generally be “copyrightable,” meaning that others couldn’t reproduce the material without permission.

But under a judicially created doctrine, copyright protection is not available for “government edicts,” like judicial opinions or legislative statutes.

The question in Georgia v. Public.Resource.Org is whether the doctrine extends to annotations, which lack the force of law.

Public.Resource.Org wants to make these annotations publicly available for free.

But Georgia argues that allowing that to happen “would eliminate the economic incentive for producing annotations,” Elwood said.

Thirteen states plus the District of Columbia have filed a friend-of-the-court brief urging the justices to expand copyright proctions for state law annotations.

The court’s ruling could decide the fate of these common tools for lawyers.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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