The U.S. Supreme Court has announced that it will be hearing three new cases. The highest court in the land granted three petitions of certiorari on Monday: Allen v. Cooper, Retirement Plans Committee of IBM v. Jander, and Holguin-Hernandez v. United States.
Let’s overview what these copyright, Employee Retirement Income Security Act (ERISA), and sentencing appeals cases are about (h/t to SCOTUSBlog for succinct descriptions of the issues at hand).
Allen v. Cooper
Issue: Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states.
The full name of the case: Frederick L. Allen and Nautilus Productions, LLC vs. Roy A. Cooper III, as Governor of North Carolina, et al.
In a reply brief from early May, lawyers for petitioner Allen explain that the “problem at issue” is states “infringing federal copyrights without limitation or remedy.” The case, believe it or not, has to do with the discovery of Blackbeard‘s wrecked ship, the Queen Anne’s Revenge.
The fight over rights to photos and video of the ship has been going on for years in North Carolina courts.
In 1996, Florida company Intersal Inc. found the wreckage of Blackbeard’s ship and reached a deal with the State of North Carolina to make a documentary that was to only be broadcast in North Carolina. Rick Allen, the petitioner, is the owner of the company that was hired to film the documentary.
Here’s a digestible account of what’s going on here and what led to today’s development:
About twenty years ago Intersal Inc., a company formed to locate and excavate historic wrecks, located the remains of Queen Anne’s Revenge. The company signed an agreement with the State of North Carolina allowing it, among other things, to produce a documentary film for broadcast only in North Carolina detailing the story of the research and salvage of the ship. Rick Allen’s company, Nautilus Productions, was engaged as the official video crew and the footage was widely broadcast on commercial networks, licensed by Nautilus. Subsequently there was a dispute between Nautilus and the State over the use of the footage. A settlement agreement was reached by which North Carolina paid Allen to settle alleged copyright infringements, and promised to cease such activity. The State did cease infringement but in 2015 it sought to indemnify itself by passing legislation, known colloquially as “Blackbeard’s Law”, requiring that all recordings and other documentary evidence of a derelict vessel or shipwreck in the custody of any agency of the North Carolina government be a public record. After the passage of “Blackbeard’s Law” the State resumed infringement both online and in print and Allen issued takedown notices that were ignored. In other words, North Carolina passed targeted legislation invalidating Allen’s copyright and depriving him of licensing opportunities in order to suit itself. Not surprisingly, Allen sued.
Retirement Plans Committee of IBM v. Jander
Issue: Whether Fifth Third Bancorp v. Dudenhoeffer’s “more harm than good” pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.
In this case, petitioner is asking SCOTUS to resolve a split between the Fifth/Sixth Circuit Courts and the Second Circuit on a thorny Employee Retirement Income Security Act (ERISA) issue. Basically, petitioners want to know how two circuits have successfully weeded out “frivolous” lawsuits, while another circuit accepted an “identical argument” from the same lawyer.
From the petitioner’s reply brief:
The circuit split on the question presented is unmistakable. In the Fifth and Sixth Circuits, allegations that the harm from an undisclosed fraud only grows over time, and so disclosure sooner rather than later is necessarily preferable, are insufficient under Fifth Third. In the Second Circuit, however, those same allegations (pleaded by the same counsel) are sufficient to satisfy Fifth Third and open the doors to discovery. App.15a-21a. As other courts have recognized, the decision below “directly contradicts” the law in the Fifth and Sixth Circuits, “which rejected an identical argument.”
The purpose of the “more harm than good” pleading standard set out by the Fifth Third case mentioned above has been helpfully explained before:
Based on the court holdings issued to date, the “more harm and good” pleading standard sets a high burden for a plaintiff that may be insurmountable in many cases. It is not clear what specific facts a plaintiff could allege that would support the claim that a prudent fiduciary in the same circumstances could not have concluded that the proposed alternative actions would do more harm than good with respect to the plan’s participants
The petitioner makes clear that it wants SCOTUS to clarify what facts a plaintiff could allege to get a court to allow an ERISA case to move forward.
“The problem here lies not in Fifth Third or Congress’ failure to extend the PSLRA to ERISA stock-drop actions, but with the Second Circuit’s decision that unambiguously allows an ERISA action to proceed on the same facts as a failed securities action that was stopped in its tracks,” the petitioner argued.
Holguin-Hernandez v. United States
Issue: Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.
In this case, the petitioner also asked SCOTUS to resolve a split in the courts. The Fifth Circuit has a requirement in place that the other circuits do not when it comes to appellate review of sentences.
The petitioner notes that the Fifth Circuit “requires that a post-sentence objection be made in the district court to trigger appellate review of a sentence under the abuse-of-discretion, reasonableness standard this Court set out in Gall v. United States, 552 U.S. 38 (2007).”
“No other circuit has such a requirement,” the reply brief in this case said.
“The requirement imposed by the Fifth Circuit means that a significant number of criminal sentences are reviewed differently in that court than in the other courts of appeals,” the petitioner continued. “The Fifth Circuit relegates defendants who do not make a post-sentence objection to plain-error review of their sentences, a review less comprehensive and with a different allocation of proof on harmful error than the review this Court has repeatedly held applicable.”
[Image via ERIC BARADAT/AFP/Getty Images]