Petitions to watch | Conference of 12.10.10

This edition of "Petitions to watch" features cases up for consideration at the Justices' December 10 conference. These are petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues. Title: Cahill v. Alexander Docket: 10-203 Issue(s): Whether the states may, consistent with the First Amendment, restrict attorney advertising that involves unverifiable claims, including implied claims about the quality of attorneys' legal services, and marketing techniques that do not assist the public in the intelligent selection of counsel. Certiorari-Stage Documents: Opinion below (2d Circuit) Petition for certiorari Brief in opposition Petitioner's reply Title: Schwarzenegger v. Rincon Band of Luiseno Mission Indians Docket: 10-330 Issue(s): (1) Whether a state demands direct taxation of an Indian tribe in compact negotiations under Section 11 of the Indian Gaming Regulatory Act, when it bargains for a share of tribal gaming revenue for the State's general fund; and (2) whether a court exceeds its jurisdiction to determine the State's good faith in compact negotiations under Section 11 of the Indian Gaming Regulatory Act, when it weighs the relative value of concessions offered by the parties in those negotiations. Certiorari-Stage Documents: Opinion below (9th Circuit) Petition for certiorari Brief in opposition Petitioner's reply Title: Swarthout v. Cooke Docket: 10-333 Issue(s): Whether a federal court may grant habeas corpus relief to a state prisoner based on its view that the state court erred in applying the state-law standard of evidentiary sufficiency governing state parole decisions. Certiorari-Stage Documents: Opinion below (9th Circuit) Petition for certiorari Brief in opposition Petitioners' reply Title: Shell Oil Co. v. Hebble Docket: 10-349 Issue(s): 1) Whether, in calculating the ratio of punitive damages to harm to a plaintiff, heightened penalties such as 12% interest imposed to compel compliance may be treated as "compensatory"; 2) Whether, in determining the maximum punitive damages award in a case involving a substantial compensatory award and only economic harm, courts should be guided by the 1-to-1 ratio mentioned in State Farm Mutual Insurance Co. v. Campbell or instead presume that anything within the range of 4-to-1 is permissible. Certiorari-Stage Documents: Petition for certiorari Brief in opposition Petitioners' reply Amicus brief of the American Petroleum Institute Amicus brief of Product Liability Advisory Council Amicus brief of U.S. Chamber of Commerce et al. Amicus brief of the International Association of Defense Council Title: Tuck-It-Away, Inc. v. New York State Urban Development Corporation, dba Empire State Development Corporation Docket: 10-402 Issue(s): 1) Whether it was error for the Court of Appeals of New York to disregard the principles enunciated in Kelo v. City of New London in sanctioning the use of eminent domain for the benefit of a private developer? 2) Whether the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States imposes any minimum procedural standards, in accordance with the requirement of fundamental fairness, to preserve a property owner's meaningful opportunity to be heard within the context of an eminent domain taking? Certiorari-Stage Documents: Petition for certiorari Brief in opposition Petitioners' reply Amicus brief of New York State Senator Bill Perkins Amicus brief of Pacific Legal Foundation Title: Applera Corp. v. Enzo Biochem, Inc. Docket: 10-426 Issue(s): Whether the Federal Circuit's standard for finding that a patent's claims are "definite," which is met as long as the language of a claim is not "insolubly ambiguous" or is capable of being construed, is consistent with the language of 35 U.S.C. § 112, which provides that the patent must include "claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." Certiorari-Stage Documents: Opinion below (Federal Circuit) Petition for certiorari Brief in opposition Petitioners' reply Amicus brief of Yahoo! Amicus brief of Altera Corporation et al. DISCLOSURE: Akin Gump represents one of the parties in the case below; the case is listed here without regard to its chances of being granted. Title: North Star Alaska Housing Corporation v. United States Docket: 10-122 Issue(s): Is a party's bad faith misconduct outside of court proceedings categorically exempt from an award of attorneys' fees under the "bad faith exception" to the "American Rule" that each party ordinarily pays its own fees? Certiorari-Stage Documents: Opinion below (Federal Circuit) Petition for certiorari Brief in opposition Petitioner's reply The following petitions have been re-listed for the conference of December 15. If any other paid petitions are re-distributed for this conference, we will add them below as soon as their re-distribution is noted on the docket. Title: PLIVA, Inc. v. Mensing (Granted ) Docket: 09-993 Issue(s): Whether the Eighth Circuit abrogated the Hatch-Waxman Amendments by allowing state tort liability for failure to warn in direct contravention of the Act's requirement that a generic drug's labeling be the same as the labeling approved by the Food and Drug Administration for the listed (or branded) drug. Certiorari-Stage Documents: Opinion below (8th Circuit) Petition for certiorari Brief in opposition Supplemental brief of petitioners Petitioners' reply Amicus brief of the Generic Pharmaceutical Association CVSG Information: Invited: May 24, 2010 Filed: Nov 2, 2010 (Deny) Title: Actavis Elizabeth, L.L.C. v. Mensing (Granted ) Docket: 09-1039 Issue(s): Whether the Eighth Circuit abrogated the Hatch-Waxman Amendments by allowing state tort liability for failure to warn in direct contravention of the Act's requirement that a generic drug's labeling be the same as the labeling approved by the Food and Drug Administration for the listed (or branded) drug. Certiorari-Stage Documents: Opinion below (8th Circuit) Petition for certiorari Brief in opposition Petitioner's supplemental brief Amicus brief of the Generic Pharmaceutical Association Petitioner's reply CVSG Information: Invited: May 24, 2010 Filed: Nov 2, 2010 (Deny) Title: Actavis, Inc. v. Demahy (Granted ) Docket: 09-1501 Issue(s): Whether the states are preempted under the Supremacy Clause of the Constitution from requiring additional safety information on a generic product label when the brand has not changed its label. Certiorari-Stage Documents: Opinion below (5th Circuit) Petition for certiorari Brief in opposition Petitioner's reply Title: Alderman v. United States Docket: 09-1555 Issue(s): Whether Scarborough v. United States (1977) recognizes a distinct Commerce Clause authority, beyond the three categories recognized in United States v. Lopez (1995), United States v. Morrison (2000), and Gonzales v. Raich (2005), such that a federal statute which "cannot be justified as a regulation of the channels of commerce, as a protection of the instrumentalities of commerce, or as a regulation of intrastate activity that substantially affects interstate commerce," may be sustained based on a "minimal nexus" between the activity regulated and interstate commerce. Certiorari-Stage Documents: Opinion below (9th Circuit) Petition for certiorari Brief in opposition Petitioner's reply Title: Allen v. Lawhorn Docket: 10-24 Issue(s): Whether a state court's determination that trial counsel's waiver of a penalty-phase closing argument did not prejudice the defendant is "contrary to" Supreme Court precedent. Certiorari-Stage Documents: Opinion below (11th Circuit) Petition for certiorari Brief in opposition Petitioners' reply Title: Lafler v. Cooper Docket: 10-209 Issue(s): Whether a state habeas petitioner is entitled to relief when his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial. Certiorari-Stage Documents: Opinion below (6th Circuit) Petition for certiorari Brief in opposition Petitioner's reply Title: Talk America Inc. v. Michigan Bell Telephone Co. (Granted ) Docket: 10-313 Issue(s): Whether the a public service commission was barred from requiring incumbent local exchange carriers ("ILECs") to offer their competitors telecommunications facilities at cost-based rates under § 251(c)(2) of the Telecommunications Act of 1996 as a result of a Federal Communications Commission rule eliminating ILECs' obligation to provide similar facilities under § 251(c)(3) when they are used by competitors for a different statutory purpose. Certiorari-Stage Documents: Opinion below (6th Circuit) Petition for certiorari Brief for respondent Title: Missouri v. Frye Docket: 10-444 Issue(s): Can a defendant who validly pleads guilty assert a claim of ineffective assistance of counsel by alleging that, but for counsel's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms? Certiorari-Stage Documents: Petition for certiorari Brief in opposition Amicus brief of Connecticut and eleven other states Petitioner's reply

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