Why the Biden Administration Was Right Earlier This Week to Change Course in the Obamacare Challenge Pending Before the Court

VIKRAM DAVID AMAR

Illinois Law Dean Vikram David Amar comments on an unusual move by the U.S. Solicitor General’s office, sending a letter to the U.S. Supreme Court amending the position of the federal government in a case currently pending before the Court challenging the Affordable Care Act. Dean Amar explains why the arrival of a new administration should generally not trigger such position reversals, but he argues that the unusual circumstances—specifically the “exceptional implausibility” of the government’s prior filings—may justify the government’s action in this instance.

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United States v. Lanier

Court: US Court of Appeals for the Sixth Circuit

Dockets: 16-6655, 16-6657

Opinion Date: February 11, 2021

Judge: Karen Nelson Moore

Areas of Law: Criminal Law, Legal Ethics

The Laniers were charged with a scheme to fraudulently obtain government contracts. During deliberations, a juror contacted assistant district attorney Nelson—a social acquaintance, not involved with the Laniers's case. Nelson informed the district judge that Juror 11 called her and said that there was a “problem” with the deliberations. No juror alerted court personnel to any problems. Convicted, the Laniers unsuccessfully requested to interview the jurors and moved for a mistrial. No one interviewed the jurors nor questioned Nelson in open court. The Sixth Circuit remanded for a Remmer hearing in 2017. On remand, the district court summoned the jurors and Nelson, ordering them not to discuss or research the case. Juror 11 nonetheless texted Nelson, suggesting that the juror had researched the case online. Nelson reported the texts to the district judge, who failed to notify the Laniers but ordered Juror 11 to preserve her texts and web-browsing history. Weeks later, the court ordered Juror 11 to turn over her phone and laptop and asked his IT staffer and law clerk to examine the devices. They discovered that the web-browsing data had been deleted. The Laniers unsuccessfully sought a full forensic exam. After Sixth Circuit intervention, the court allowed the Laniers’ expert to forensically examine the devices. Juror 11 revealed that she had discarded her phone months earlier; any potentially deleted texts and web-browsing data are unrecoverable. The district court denied the Laniers’ motions for a new trial. The Sixth Circuit reversed. The Laniers were deprived of a “meaningful opportunity” to demonstrate juror bias and are entitled to a new trial to be held before another district judge.

Doe v. Westmont College

Court: California Courts of Appeal

Docket: B303208(Second Appellate District)

Opinion Date: February 8, 2021

Judge: Tangeman

Areas of Law: Civil Procedure, Legal Ethics

After plaintiff filed a petition for writ of administrative mandate to overturn Westmont College's determination that he committed sexual assault, the trial court granted plaintiff's petition. Plaintiff then moved for attorney fees, which the trial court denied. Westmont appealed from the judgment, but plaintiff did not appeal from the postjudgment order denying his attorney fee motion. The Court of Appeal affirmed the judgment. After remittitur issued, plaintiff moved for attorney's fees based on the court's decision. The trial court denied the motion. The Court of Appeal held that the trial court applied the wrong standards when it denied plaintiff's attorney fee motion. In this case, the trial court erred when it denied plaintiff's post-appeal motion for attorney fees because his action against Westmont resulted in the enforcement of an important right affecting the public interest, and his action conferred significant benefits on a large group of people. Furthermore, the trial court abused its discretion by failing to consider whether public enforcement of plaintiff's fair hearing rights was available or adequate. The trial court also failed to consider whether the financial burden hoisted on plaintiff in prosecuting his case outweighed his own personal interests, focusing instead on the "punishment" that would be inflicted on Westmont for exercising its right to appeal. The court also agreed with plaintiff that the trial court erred when it denied his attorney fee motion due to his failure to provide a basis for apportionment between the fees he incurred to advance his private interests and those that advanced the public interest. Therefore, the court vacated the denial order and remanded for further proceedings.

Guo v. Moorpark Recovery Service, LLC

Court: California Courts of Appeal

Docket: A159195(First Appellate District)

Opinion Date: February 8, 2021

Judge: Needham

Areas of Law: Civil Procedure, Contracts, Legal Ethics

Guo owned TVGC, which operated a Pleasanton spa. TVGC agreed to sell the business to Mazurova's corporation, LSI. The sale was partially financed through a promissory note. The sales agreement and promissory note contained provisions allowing a party prevailing in a legal action to recover attorney fees. After the sale, a dispute arose regarding Guo’s alleged nondisclosure of outstanding coupons for free spa services and Mazurova’s alleged failure to make payments. A judgment was entered for $161,085.58 against Guo and TVGC, which was affirmed. A subsequent order specifically stated that LSI and Mazurova were deemed the prevailing parties under Code of Civil Procedure Section 1032, “entitled to recover their costs of suit and reasonable attorney fees.” Mazurova and LSI assigned the judgment to Moorpark, which engaged in collection efforts and moved for attorney fees under Code of Civil Procedure section 685.040. The court denied the motion because the underlying judgment did not include an award of attorney’s fees. The court of appeal reversed. The judgment awarded reasonable attorney fees to the prevailing parties, although it did not set a particular amount of fees and no costs bill including such fees was ever filed. The court’s failure to include a specific amount in the judgment does not defeat section 685.040.

Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH

Court: Delaware Supreme Court

Docket: 200, 2020

Opinion Date: February 8, 2021

Judge: Per Curiam

Areas of Law: Business Law, Contracts, Legal Ethics

In 2010, Appellants Meso Scale Diagnostics, LLC and Meso Scale Technologies, LLC (collectively “Meso”) filed suit in the Delaware Court of Chancery against Appellee entities Roche Diagnostics GmbH, Roche Diagnostics Corp., Roche Holding Ltd., IGEN LS LLC, Lilli Acquisition Corp., IGEN International, Inc., and Bioveris Corp. (collectively “Roche”), all of which were affiliates or subsidiaries of the F. Hoffmann -- La Roche, Ltd. family of pharmaceutical and diagnostics companies. Meso alleged two counts of breach of contract. Roche prevailed at trial, and the Delaware Supreme Court affirmed the judgment in 2014. In 2019, Meso brought a new action asking the court to reopen the case, vacate the judgment entered after trial, and order a new trial. Meso alleged that the Vice Chancellor who decided its case four years earlier had an undisclosed disabling conflict, namely, that Roche’s counsel had been simultaneously representing him in an unrelated federal suit challenging the constitutionality of Delaware’s law providing for confidential business arbitration in the Court of Chancery, 10 Del. C. 349. In that federal litigation, which ended in 2014, the Chancellor and Vice Chancellors of the Court of Chancery, as the parties responsible for implementing the challenged statute, were nominal defendants (hereinafter, the “Judicial Officers”). The Court of Chancery denied relief and dismissed the action. Meso appealed. Finding no reversible error, the Supreme Court affirmed the Court of Chancery.

Sherman v. Ellis

Court: Delaware Supreme Court

Docket: 43, 2020

Opinion Date: February 3, 2021

Judge: Vaughn

Areas of Law: Civil Procedure, Legal Ethics

Plaintiff-Appellant Dean Sherman appealed a superior court's grant of summary judgment in favor of Defendant-Appellee Stephen P. Ellis, Esquire. The appeal presented two issues: (1) whether the traditional “but for” test for proximate cause applied in a “transactional” legal negligence case, or whether it is sufficient that the alleged negligence creates an increased risk of future damages; and (2) whether the evidence satisfied the summary judgment requirement that there be no genuine issue as to any material fact. As to the first issue, the Delaware Supreme Court concluded the traditional “but for” test, not a risk of future damages test, was the appropriate test for determining proximate cause. As to the second issue, the Court concluded the evidence, viewed in the light most favorable to Sherman, raised a genuine issue of material fact, and that summary judgment should have been denied. This second conclusion required that the superior court's judgment be reversed and the case remanded for further proceedings.

Cook v. Wiebe

Court: Idaho Supreme Court - Civil

Docket: 46732

Opinion Date: February 10, 2021

Judge: Roger S. Burdick

Areas of Law: Civil Procedure, Family Law, Legal Ethics

Holly Cook appealed an administrative order entered by an Administrative District Judge (“ADJ”) declaring her to be a vexatious litigant pursuant to Idaho Court Administrative Rule 59. The order prohibited Cook from filing any new litigation pro se in Idaho without first obtaining leave of the court where the litigation was proposed to be filed. Ms. Cook petitioned for a divorce from her husband (“Mr. Cook”) in 2015. During the lengthy and contentious divorce proceedings, Ms. Cook had assistance of counsel for portions of the proceedings, but represented herself pro se when she did not. Some aspects of the divorce proceedings were appealed to the district court. Mr. Cook filed a moved that Ms. Cook declared a vexatious litigant. Neither party requested a hearing on Mr. Cook’s motion. The district judge presiding over the appeal referred the matter to the ADJ. The ADJ found that Ms. Cook largely failed to appear at dates set in scheduling orders that she (with and without counsel) agreed to. She failed at obtaining continuances, at having the trial judge disqualified, and to move the court for reconsideration of many intermediate decisions. She attempted to collaterally attack the default judgment of divorce, and at some point, was held in contempt for failing to respond to court orders during the divorce proceedings. Separate from the divorce proceedings, the ADJ noted Ms. Cook had filed nine pro se civil protection orders, all of which had been dismissed in favor of the parties from whom she sought protection. The Idaho Supreme Court determined the ADJ abused its discretion in declaring Ms. Cook a vexatious litigant; the ADJ did not review the merits and reason for dismissal in the nine civil protection actions, causing the ADJ to conclude incorrectly the final determinations were adverse to her. Furthermore, with respect to the divorce proceedings, the Court determined the ADJ abused its discretion by failing to make factual findings that Ms. Cook repeatedly attempted to relitigate issues already finally decided by the magistrate court. The Supreme Court concluded the ADJ did not make sufficient findings to support the conclusion that Ms. Cook’s filings were frivolous, unmeritorious, or filed with the intent to cause unnecessary delay. Accordingly, the Court reversed the prefiling order and remanded to allow the ADJ the opportunity to reconsider this matter.

Battise v. Aucoin

Court: Supreme Court of Mississippi

Citation: 2019-IA-01775-SCT

Opinion Date: February 11, 2021

Judge: Beam

Areas of Law: Civil Procedure, Family Law, Legal Ethics

Linda Battise was the mother of Joseph Aucoin, deceased. Joseph and Sheila Aucoin were married and had two daughters. After Joseph’s death, Sheila began restricting Linda’s visitation with the children because Linda was not abiding by Sheila’s parental decisions. Through counsel, Linda petitioned for grandparent visitation. The chancellor encouraged the parties to confer because Sheila made some statements showing that they could come to a visitation agreement without court involvement. Linda and Sheila reached an agreement; however, the chancellor declined to sign the agreed order. The chancellor advised Sheila to retain an attorney because she did not believe that Sheila fully understood the implications of the agreement. Furthermore, the chancellor told Sheila that she was entitled to attorney’s fees. Shiela hired an attorney, and filed a motion to dismiss or stay proceedings until fees were paid in advance. The chancellor denied Linda’s motion to recuse, and ordered Linda to pay $3,500 to Sheila for attorney’s fees within thirty days or else she could not proceed with her case. Linda appealed, arguing that: (1) the chancellor erred by requiring her to prepay attorney’s fees to Sheila before Linda’s case could be heard; (2) the chancellor erred by not entering a final judgment; and (3) the chancellor erred by not recusing. After review, the Mississippi Supreme Court affirmed the chancellor's denial of the motion to recuse. The Court reversed the prepayment order, and remanded for further proceedings on the merits.