American Journal of Trial Advocacy

Photo Credit: Kyle Cushman, How does a Whistle Work?, Sciencing (Apr. 24, 2017), https://sciencing.com/a-whistle-work-4601984.html.

Authored by Morgan A. Matney

Why would an employee decide to blow the whistle on their employer? They may feel that there is so much to lose – a favorable working reputation amongst colleagues and a persona of loyalty amongst current and future employers, just to name a few examples – but what do they have to gain? That depends on the circumstance.

There are some forms of whistleblowing, such as acting as a relator in a qui tam lawsuit, which already has an associated benefit for the whistleblower.[1] However, other areas of whistleblowing have not yet provided such benefits.[2] This has effectively created a “gap,” according to Lisa Monaco, the Deputy Attorney General.[3] Thus, to enhance the potential benefits of whistleblowing and “fill gaps,” the U.S. Department of Justice (“DOJ”) is actively working on a plan to sweeten the deal financially for employees and entice them to give up what information they may have through a new whistleblower program.[4] Additionally, Monaco explained which areas of crime the DOJ is specifically looking to receive information on, naming “criminal abuses of the U.S. financial system, foreign corruption cases outside the jurisdiction of the SEC. . . and . . . domestic corruption cases” as areas of particular interest, while still disclaiming that the DOJ is interested in all federal criminal activity.[5]

On March 7, 2024, Monaco introduced the concept for this new program that will expand the circumstances under which awards can be given in exchange for whistleblower information; the monetary benefit to be gained in this program will come from that which is surrendered by those who committed the criminal acts.[6] While the program on its face seems broadly applicable, it is essential to note that restrictions do exist, and not everyone will be able to reap a reward; there are qualifications specifically provided by Monaco that clarify who the intended program participants are and the circumstances under which they will qualify.[7]

• First, this program will only be applicable to whistleblowing processes that do not include another monetary reward.[8]
• Second, it is only after payment has been made to the victims of the crime, that monetary reward will be provided to the whistleblower.[9]
• Third, only whistleblowers who were innocent of the alleged wrongdoing will be qualified for a program reward.[10]
• Fourth, the program will only reward in light of new and accurate information.[11] Meaning, the whistleblower must be the first to come forward.[12]

Through these qualifiers, the DOJ emphasizes the importance of having serious, honest, and innocent employees come forward.[13]

So, the question now becomes: what should attorneys take from this information? First, attorneys should be sure to keep an eye out for updates on the program. Monaco expressed that the program will officially begin at some point in 2024 after describing the current work on the program “as a ninety-day sprint to develop and implement [the] pilot program.”[14] Acting Assistant Attorney General Nicole Argentieri also gave a speech on March 8, 2024, inviting people to “stay tuned” as she will be providing additional information in the relatively near future.[15] Knowing that more information is to come, attorneys and federal prosecutors, particularly, need to maintain attention and awareness of potential changes that may arise and what the program will ultimately entail.

Next, attorneys and federal prosecutors should be aware of difficulties that may arise with a potential increase in whistleblower-initiated actions. One difficulty is potential hesitation from whistleblowers to move forward and assist the case after discovering they may not be able to remain anonymous due to the nature of a criminal case.[16] A second difficulty is that attorneys still need to give special attention to the information they receive from a whistleblower following the commencement of this program. Whistleblowers can be enticed by the possibility of reward or by other factors, and prosecutors should be particularly diligent in their investigation and information-gathering to ensure that the information they rely on is entirely accurate.[17] This is not to say that prosecutors should assume the rewards will drive intentionally inaccurate claims, as evidence indicates that is not typically true, but prosecutors should still maintain a system for verifying credibility.[18]

Other difficulties that may arise are specifically related to the trial advocacy of federal prosecutors in these cases. One is that such a rise in the number of these actions may lead to a greater workload for federal prosecutors.[19] Specifically, according to Henry Van Dyck, the program “creates a whole new area for defendants to demand discovery of exculpatory information and to cross-examine witnesses at trial on their financial basis.”[20] Federal prosecutors, therefore, need to prepare themselves for such and similar requests and will, again, need to ensure that their cases are air-tight when it comes to credibility. Another difficulty that prosecutors may face is one of creativity and skill – figuring out how to present a whistleblower as a witness “not . . . compromised by the potential that they would be subject to such a large recovery.”[21] While it may seem daunting on this page, creativity is a job description that attorneys are likely very familiar with already, though it may complicate the job at times. To best advocate in trial, federal prosecutors must find a way to appropriately and credibly include whistleblowers as witnesses when doing so would benefit their case. Certainly, other difficulties and changes may arise as more information is released by the DOJ regarding this new whistleblower program.

Ultimately, in light of this introduction by Monaco, federal prosecutors and whistleblowers alike should be certain to turn their attention to the DOJ for the upcoming months. Prosecutors should ensure that they are prepared for the difficulties that may arise in their efforts to diligently prosecute based on the information and claims of whistleblowers, and whistleblowers themselves should watch for new information regarding qualifiers and be ready to come forward. Through this new program, the government is calling all whistleblowers, providing an opportunity for them to be compensated for the risks they take, and opening up a world of possibility for justice to be served.

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[1] The Justice Department, DAG Lisa O. Monaco Delivers Keynote Address at the ABA’s 39th Annual White Collar Institute, YouTube (Mar. 7, 2024), https://youtu.be/sjyIcmqbXRE?si=SDP5NkCUokMzKOCj (referencing forms of rewarded whistleblowing that are already in place and unaffected by the new program); Whistleblower Protections and Rewards, National Whistleblower Center, https://www.whistleblowers.org/whistleblower-protections-and-rewards/ (last visited May 1, 2024) (“In the United States, there are dozens of laws at the federal, state and local levels that offer protections and rewards for whistleblowers.”); see, e.g., Qui Tam Lawsuits – Whistleblower Guide & Qui Tam FAQs, Phillips & Cohen (Sept. 29, 2023), https://www.phillipsandcohen.com/what-is-a-qui-tam-case/ (“If the case is successful, the relator can earn a whistleblower reward.”).

[2] See The Justice Department, DAG Lisa O. Monaco Delivers Keynote Address at the ABA’s 39th Annual White Collar Institute, YouTube (Mar. 7, 2024), https://youtu.be/sjyIcmqbXRE?si=SDP5NkCUokMzKOCj (acknowledging that circumstances without a reward system already in place are those to which this program will apply). 

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. (mentioning qui tam as an example of a process to which this program will NOT apply).

[9] Id.

[10] Id.

[11]Id.

[12] The Justice Department, DAG Lisa O. Monaco Delivers Keynote Address at the ABA’s 39th Annual White Collar Institute, YouTube (Mar. 7, 2024), https://youtu.be/sjyIcmqbXRE?si=SDP5NkCUokMzKOCj (“To be eligible for a reward, you have to tell us something we didn’t already know, and you have to be first in the door”).

[13] Id.

[14] Id.

[15] The Justice Department, Criminal Division Acting AAG Argentieri Delivered Remarks at the ABA’s White Collar Crime Institute, YouTube (Mar. 8, 2024), https://youtu.be/TfaYJ9XcGOQ?si=lgR8ITBtdvzldcIR.

[16] See Dave Michaels, Justice Department to Pay Whistleblowers Who Tip on Corporate Crime, Wall St. J. (Mar. 7, 2024), https://www.wsj.com/articles/justice-department-to-pay-whistleblowers-who-tip-on-corporate-crime-191fc2e5 (“Prosecutor’s won’t be able to promise anonymity to the tipsters because defense attorneys are entitled to information that is important to their client’s case, [Rod Rosenstein] said.”).

[17] See Debunking Whistleblower Myths, Nat’l Whistleblower Ctr., https://www.whistleblowers.org/debunking-whistleblower-myths/ (last visited May 1, 2024) (asserting that “unbiased authorities” need to review information provided by a whistleblower for the purpose of establishing credibility because “[w]rongdoers frequently attack the motives of their accusers and attempt to destroy their reputations”). 

[18] See id. (describing research results regarding intentionally inaccurate claims in one section and explaining the importance of fully vetting information provided by whistleblowers in another section).

[19] Ben Penn, DOJ to Pay Whistleblowers for Corporate Crime Tips (2), Bloomberg L. (Mar. 7, 2024), https://news.bloomberglaw.com/us-law-week/justice-department-to-pay-whistleblowers-for-corporate-crime-tips (quoting Henry Van Dyck).

[20] Id.

[21] Ben Penn, New DOJ Whistleblower Rewards Policy Has Lawyers Gearing Up, Bloomberg L. (Mar. 13, 2024), https://news.bloomberglaw.com/us-law-week/new-doj-whistleblower-rewards-policy-has-lawyers-gearing-up (quoting Fry Wernick).

Photo credit: Andrew Glass, Supreme Court established as nation’s highest tribunal, Sept. 24, 1789, Politico (Sept. 24, 2018), https://www.politico.com/story/2018/09/24/this-day-september-24-1789-830087

Authored by Hannah Wood

Justice Kavanaugh’s concurrence in Dobbs v. Jackson Women’s Health Organization poised that the question of whether a state may “bar a resident of that State from traveling to another State to obtain an abortion” is not “especially difficult as a constitutional matter.”[1] For Justice Kavanaugh, the answer was simply “no” based on the “constitutional right to interstate travel.”[2] Yet, many states across the nation have introduced legislation to prosecute those who travel across state lines to obtain an abortion.

The Supreme Court’s decision in Dobbs triggered a nationwide explosion of legislation concerning access to abortions and reproductive care.[3] Anticipating the Dobbs opinion, thirteen states readied “trigger laws” to criminalize abortions as soon as Roe v. Wade was overturned.[4] And, contrary to Justice Kavanaugh’s view of the protections regarding interstate travel, some states,  including Alabama, through these laws, are considering prosecuting individuals who travel outside their state to obtain a legal abortion.[5]

For example, Alabama’s Human Life Protection Act bans abortion at any stage of development, with no exceptions for rape or incest.[6] In response to the Act, organizations in Alabama designed to help women travel to obtain legal abortions, began to worry if their activity would subject them to criminal liability.[7] In addressing this, Attorney General Steve Marshall declared, “if someone was promoting themselves out as a funder of abortions out of state, that is potentially criminally actionable.”[8] While Marshall made clear that pregnant women could drive across “state lines and seek . . . an abortion in another place,” organizations and individuals who aid in such an act are fair game for criminal prosecution under conspiracy and accessory laws.[9]   

Marshall’s statement motivated the Yellowhammer Fund, a non-profit organization providing aid to Alabamians for travel to obtain legal abortion care, to file suit against Marshall in his official capacity as Attorney General.[10] The Yellowhammer Fund’s complaint sought a legal ruling that the State of Alabama cannot prosecute individuals or organizations for providing financial, appointment, or travel assistance to Alabama residents who seek a legal abortion in another state.[11] In the complaint, the Yellowhammer Fund raised declaratory and injunctive claims, including the right to expression, association, travel, and freedom from extraterritorial application of state law.[12] Additionally, in their Motion for Summary Judgment, the Yellowhammer Fund argued that Alabama’s abortion ban cannot apply outside of the state and that violations of Alabama’s conspiracy or accessory laws are only applicable to abortions performed within Alabama.[13] In opposition, Marshall argued that since an abortion performed in Alabama is a crime, “a conspiracy formed in the State to have that same act performed outside the State is illegal.”[14]

Shortly after the parties’ initial arguments, the Department of Justice (DOJ) issued a Statement of Interest supporting the Yellowhammer Fund.[15] In that statement, DOJ rejected Marshall’s argument noting that conspiracy law does not empower a state attorney general to “impede interstate travel,” as it is wholly contrary to the constitutional right to travel.[16] DOJ also explained that “a state cannot bypass constitutional limits on its jurisdictional power by the simple expedient of using its conspiracy laws to purposefully interfere with conduct that other states have chosen to legalize.”[17]

This conclusion was similarly held by the United States District Court for the Middle District of Alabama who denied Marshall’s Motion to Dismiss.[18] The district court found that the Yellowhammer Fund had sufficiently alleged that “Marshall’s threats, if carried out, would violate the right to travel and the freedom of speech.”[19] Specifically, the court found that, “if a State cannot outright prohibit the plaintiff’s clients from traveling to receive lawful out-of-state abortions, it cannot accomplish the same end indirectly by prosecuting those who assist them.”[20] Accordingly, for the foreseeable future, organizations in Alabama may aid women in traveling to obtain legal abortions without fear of prosecution.

However, Alabama is not alone in pursuing such legislation. Bills that criminalize “abortion trafficking,” which targets adults aiding minors in procuring an abortion across state lines, were introduced in Tennessee and Idaho.[21] The recently enacted Tennessee bill criminalizes the “trafficking of a minor” for “procuring an act that would constitute a criminal abortion for [a] pregnant unemancipated minor,” and attempts to avoid right to travel restrictions by including “regardless of where the abortion is to be procured.”[22] Consequently, the law has been criticized by media for vagueness concerning the attempt to avoid the right to travel obstacle and jeopardizing freedom of speech.[23] In Idaho, a nearly identical “abortion trafficking” bill was met with similar criticism.[24] An Idaho judge invalidated the bill with an opinion criticizing “abortion trafficking is not a thing” because the procedure is legal in the other state.[25]

Therefore, with the perceived judicial trend leaning towards refusing to prosecute individuals who travel to obtain legal abortions, in-state prosecutions are coming into focus, and people are anticipating what types of evidence will support such prosecutions. For many, a rational place to start was data that is not protected by doctor-patient confidentiality or electronic data voluntarily given to apps. Online, women, including sociologist Gina Neff, began to advocate for deleting menstrual cycle tracking apps, worrying such data could be a prosecutorial gold mine prompting the tweet “delete those fertility apps now.”[26] This fear was well founded, as it is not uncommon for app companies to sell or provide information willingly to law enforcement.[27]

However, digital information stored in apps is not the only type of medical information at risk, as private medical records are also obtainable. Following Dobbs, many began investigating the extent of doctor-patient confidentiality and the Health Insurance Portability and Accountability Act’s (“HIPAA”) protection of medical records.[28] Commenting on this, Kayte Spector-Bagdady, a professor of bioethics and law at the University of Michigan, stated, “people think HIPAA protects a lot more health information than it actually does.”[29] HIPAA contains several exceptions regarding private health information, including disclosures required for law enforcement investigations or judicial proceedings.[30] However, some scholars, such as Cynthia Conti-Cook, a civil rights lawyer, have stressed the fears surrounding medical records and data are less concerning than evidence already used in criminal trials.[31] Cook points to the more obvious (and incriminating) evidence, like “the text to your sister that says, ‘Expletive, I’m pregnant,’” and the “search history for abortion pills or the visitation of websites that have information about abortion.”[32]

Accordingly, the prosecutorial landscape is simultaneously familiar and unknown, with each day bringing new legislation and judicial decisions. For now, though, it seems judges across the nation agree with Justice Kavanaugh’s proposition that whether a state may “bar a resident of that State from traveling to another State to obtain an abortion” is “not especially difficult as a constitutional matter.”[33] The resounding judicial response, just as Justice Kavanaugh predicted, is “no” based on the “constitutional right to interstate travel.”[34]

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[1] 587 U.S. 215, 346 (2022) (J. Kavanaugh, Dissenting).

[2] Dobbs, 587 U.S. at 346.

[3] See Risa Kaufman et. al., Global impacts of Dobbs v. Jackson Women’s Health Organization and abortion regression in the United States, Nat’l Libr. of Med. 1, 1 (2022) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9673802/pdf/ZRHM_30_2135574.pdf (“In the immediate aftermath of the decision, states have rushed to eliminate abortion access, and the legal landscape has been chaotic, with the status of abortion rights changing daily.”)

[4] Jesus Jiménez & Nicholas Bogel-Burroughs, What are abortion trigger laws and which states have them? New York Times (2022), https://www.nytimes.com/2022/06/25/us/trigger-laws-abortion-states-roe.html

[5] Josh Moon, Alabama AG: State may prosecute those who assist in out-of-state abortions, Alabama Pol. Rep. (2022), https://www.alreporter.com/2022/09/15/alabama-ag-state-may-prosecute-those-who-assist-in-out-of-state-abortions/.

[6] Ala. Code § 26-23H-4; Alabama attorney says the state can prosecute those who help women travel for abortions, AP News (Aug. 31, 2023), https://apnews.com/article/alabama-abortion-steve-marshall-2157a7d0bfad02aad1ca41e61fe4de33 (“[Steve Marshall]’s office wrote that the Alabama Legislature categorized abortion as among the highest wrongs, ‘comparing it to murder’.”).

[7] See Alander Rocha, Health care providers sue Alabama officials over threats of prosecution in abortion aid, Louisiana Illuminator (Aug. 1, 2023), https://lailluminator.com/2023/08/01/health-care-providers-sue-alabama-officials-over-threats-of-prosecution-in-abortion-aid/ (“[B]anning abortion in Alabama seems to not have been enough, and those in power want to muzzle providers like me to prevent us from sharing information with our pregnant patients about the options they have.”).

[8] Josh Moon, Alabama AG: State may prosecute those who assist in out-of-state abortions, Alabama Pol. Rep. (2022), https://www.alreporter.com/2022/09/15/alabama-ag-state-may-prosecute-those-who-assist-in-out-of-state-abortions/.

[9] Id.

[10] Kim Chandler, Alabama health care providers sue over threat of prosecution for abortion help, AP News (July 31, 2023), https://apnews.com/article/abortion-alabama-lawsuit-9ed07274058a5fd79b5ba936b00a8380

[11] Id.

[12] Complaint at 29-36, Yellowhammer Fund v. Marshall, No. 2:23-CV-450, 2024 WL 1999546, *1 (M.D. Ala. May 6, 2024).

[13] Motion for Summary Judgment at 10, Yellowhammer Fund v. Marshall, No. 2:23-CV-450, 2024 WL 1999546, *1 (M.D. Ala. May 6, 2024).

[14] Motion to Dismiss at 2, Yellowhammer Fund v. Marshall, No. 2:23-CV-450, 2024 WL 1999546, *1 (M.D. Ala. May 6, 2024).

[15] DOJ Statement of Interest at 1-3, Yellowhammer Fund v. Marshall, No. 2:23-CV-450, 2024 WL 1999546, *1 (M.D. Ala. May 6, 2024).

[16] Id.

[17] Id.

[18] Yellowhammer Fund v. Marshall, No. 2:23-CV-450, 2024 WL 1999546, at *23-24 (M.D. Ala. May 6, 2024).

[19] Yellowhammer Fund, No. 2:23-CV-450, 2024 WL 1999546,at *23.

[20] Id. at *13.

[21] H.R. 1895, 113th Leg., (Tn. 2024); S.R. 1871 113th Leg., (Tn. 2024); Alanna Mayham, Idaho criminalizes helping minors to obtain abortions, Courthouse News Serv. (April 6, 2023), https://www.courthousenews.com/idaho-criminalizes-helping-minors-to-obtain-abortions/ (House Bill 242 – also called the “abortion trafficking” law – makes it illegal for any adult to assist a minor in obtaining abortion medication or a lawful abortion out of state without their parent’s consent.”).

[22] Id.  

[23] See Angele Lathan, Concerns over free speech grow as abortion travel ban heads to Tennessee governor’s desk, The Tennessean (May 16, 2024), https://www.tennessean.com/story/news/politics/2024/05/16/free-speech-concerns-grow-tennessee-abortion-travel-ban-bill/73374657007/ (“[T]he criminal offense in [Tennessee’s] version applies to a much broader array of activity, and I think contributes to an even more concerning sense of vagueness.”); Catherine Sweeney, Feds want to shield medical records as Tennessee proposes travel bans for minor’s reproductive care, Nashville Pub. Radio (April 18, 2024), https://wpln.org/post/feds-want-to-shield-medical-records-as-tennessee-proposes-travel-bans-for-minors-reproductive-care/ (“We’ve never seen a court interpret ‘recruit or harbor’… we’re creating a mess around [] things that are pretty constitutionally protected … [t]ypically the government doesn’t regulate our conversations.”).

[24] Mary Anne Pazanowski, Idaho Can’t Enforce Abortion “Trafficking” Ban During Appeal, Bloomberg Law (Jan. 5, 2024), https://news.bloomberglaw.com/litigation/idaho-cant-enforce-abortion-trafficking-ban-during-appeal

[25] Id.; Memorandum Decision and Order, at 57, Matsumoto v. Labrador, No. 1:23-CV-000323, 2023 WL 7388852, at *23 (D. Idaho Nov. 8, 2023).

[26] See Kashmir Hill, Deleting Your Period Tracker Won’t Protect You, New York Times (June 30, 2022), https://www.nytimes.com/2022/06/30/technology/period-tracker-privacy-abortion.html (“When a draft of the court’s [Dobbs] decision was first leaked in May, and then  when the ruling became official last week, people focused on these digital trails, specifically the information that millions of women share about their menstrual cycle on period tracker apps. The knee-jerk advice was simple and direct: Delete them all. Immediately.”).

[27] Rina Torchinsky, How period tracking apps and data privacy fit into a post-Roe v. Wade climate, National Pub. Radio (June 24, 2022), https://www.npr.org/2022/05/10/1097482967/roe-v-wade-supreme-court-abortion-period-apps (“It’s not uncommon for apps to cooperate law enforcement during criminal investigations.”).

[28] Eric Boodman, et. al, HIPPA won’t protect you if prosecutors want your reproductive health record, STAT (June 24, 2022), https://www.statnews.com/2022/06/24/hipaa-wont-protect-you-if-prosecutors-want-your-reproductive-health-records/.

[29] Id.

[30] Id.

[31] See Kashmir Hill, Deleting Your Period Tracker Won’t Protect You, New York Times (June 30, 2022), https://www.nytimes.com/2022/06/30/technology/period-tracker-privacy-abortion.html.

[32] Id.

[33] Dobbs v. Jackson Women’s Health Organization, 587 U.S. 215, 346 (2022) (J. Kavanaugh, Dissenting).

[34] Dobbs, 587 U.S. at 346.

Dr. Seuss, The Lorax (1971)

Authored by Synclair B. Goyer

Compensatory damages are one of the most common forms of civil remedies awarded in cases involving torts, especially for cases where real property has been damaged.  However, there is contention across jurisdictions regarding how courts, juries, and attorneys should properly value damage to real property and agricultural fixtures like trees, shrubs, fruit, and crops.[2] Four methods of calculating these compensatory damages have gained popularity.  These methods include: the difference in value to the land; the value of the trees, shrubs, fruit, or crops destroyed or damaged; the crop loss (i.e. the value the trees, shrubs, fruit, or crops could have had at market had they made it to maturity without injury); and the replacement or restoration cost of the trees, shrubs, fruit, or crops.[3]

The calculation for compensatory damages for injuries to real property typically follows a straightforward set of general rules. These rules are problematic when applied to trees, shrubs, fruit, or crops.[4]  For general damage to real property, courts determine whether the damage is permanent (the property is so damaged as it cannot be restored) or whether the damage is temporary (the property can be restored).[5]  In cases of permanent damage, the tortfeasor is liable for the difference in the value of the property before and after the damage.[6]  In cases of temporary damage, the tortfeasor is liable for restoration or repair costs.[7]  However, applying this general rule to trees, shrubs, fruit, or crops is problematic because it can be challenging to determine if certain damages should be classified as permanent or temporary.  For example, when a tree, shrub, fruit, or crop is destroyed, is the loss of said plant life the permanent damage or the damage to the real estate which will recover in time.[8]  As such, courts developed four separate calculations for compensatory damages to be analyzed on a case-by-case basis.[9]

While some jurisdictions are more set in a method that the courts of that jurisdiction prefer, many jurisdictions leave it to the attorneys to present evidence on the appropriate method to be used and allow the jurors to decide which calculation they believe to be the best.[10] This creates excellent opportunities for attorneys to argue for what is best for their client, and as such, attorneys need to know all they can about the different calculation methods, what jurisdictions lean towards which methods, and which method is going to bring about the most favorable result for their client.  While courts recently have been leaning more towards accepting the difference in the value of land as the dominant calculation for compensatory damages, in many cases, the damage or injury may not significantly impact the value of the property as a whole.  Therefore, it is often in the best interest of the client for an attorney to argue for the value of the injured trees, shrubs, fruit, or crops or their replacement cost.

Many states have shown their support behind the difference in value of the land calculation of compensatory damages.[11] Under this calculation method, evidence is presented on the value of the land just before the damage and on the value of the land just after the damage.[12] In these cases, it is recommended that attorneys focus their evidentiary presentation on expert witnesses who can testify as to the value of the property before and after the damage.[13] It is also important to note that even though many states have shown a tendency to lean towards the difference in value of the land calculation, courts do not strictly adhere to this rule. Almost all courts make allowances for attorneys to argue that their specific case involved damage to trees, shrubs, fruit, or crop of unique intrinsic value or revenue-generating value.[14]

The second most popular calculation of compensatory damages for damaged trees, shrubs, fruit, or crops is the intrinsic value of the plant life before the injury.[15] Courts have held that when trees, shrubs, fruit, or crops are destroyed and have a distinct value of definite measurement, the value of the tree, shrub, fruit, or crop destroyed is the best measure of damages.[16] It has been further reasoned that if the plant life destroyed has a value which can be accurately measured and ascertained without reference to the value of the soil on which it grew, the recovery should be for the value of the plant destroyed and not for the difference in the value of the land before and after such destruction.[17] Here, attorneys have the burden of evidencing that the damaged plant life is distinct from the land, can be individually valued, and what that individual value is.[18] Expert testimony once again is likely to be the most persuasive evidence.

The third method of calculating compensatory damages is the crop loss value. This method involves testimony regarding the value that the trees, shrubs, fruit, or crop would have earned at market.[19] Under this method, expert testimony remains the best source of evidence regarding how much the damaged plant life would have gone for absent the injury; however, it can be difficult to find individuals qualified to be experts.[20] As such, testimony regarding damages often will primarily come from the plaintiff regarding historical data for their sales or how much they got for their similar but undamaged produce.[21] Courts will also entertain testimony from local sellers, for example grocery store managers, department of agriculture employees, etc. Note here, due to the lack of expert qualification, courts and juries often will not take these testimonies at face value and will most likely determine the proper amount of compensatory damages to be between the values evidenced by each party.[22] Knowing this, it is recommended that plaintiff’s attorneys gather a large group of witnesses who can testify regarding the market value of the tree, shrub, fruit, or crop had it not been damaged. It is also recommended that plaintiff’s attorneys enter into evidence their client’s historical records on sale figures. These two sources of evidence and testimony will sway a court and jury the most.

The fourth and final method of calculating compensatory damages is the replacement cost of the damaged tree, shrub, fruit, or crop. Landowners have the right to enjoy their property according to their own personal tastes and as such, should be compensated for the costs to restore their property to the condition it was in prior to the damage.[23] Where the destruction of the tree, shrub, fruit, or crop is a temporary injury to the land and the plant life may also be replaced in a comparatively brief time, the most appropriate compensation is the replacement cost of the tree, shrub, fruit, or crop.[24] When attempting to convince a court or jury to accept the replacement cost as the appropriate method of compensatory damages, attorneys should focus on presenting evidence on the unique value their particular client has placed on the destroyed plant life, and on the relatively temporary damage done and physical ease of replacement.[25] Personal testimony likely represents the best form of evidence; however, attorneys should be prepared for counter testimony attempting to show that the particular damaged plant life is just one of many and holds no true unique value to the property of the landowner.

Overall, courts have decided that the most appropriate measure for compensatory damages is that which compensates the owner for all the detriment proximately caused and that there is no fixed rule for the measurement of such damages.[26] Once a court or jury has determined that the defendant is liable for the damage to the tree, shrub, fruit, or crop in question, the courts and juries want to award whatever compensatory damages will most fairly place the plaintiff in a position equal to which they were in prior to the injury. Therefore, whichever measure is most appropriate to compensate the injured party for the loss sustained in the particular case, is the one which should be used.[27] All four of the above-described methods of calculating compensatory damages have the chance to fairly compensate an injured landowner, but it will be up to the attorney to advocate for the method that provides the greatest value to their client. Deciding which method should be advocated for will depend on the various factors described above including whether the damage inflicted affects the property as a whole, whether the damaged trees, shrubs, fruit, or crops can be independently valued, the temporary or permanent nature of the damage, and the unique intrinsic value the damaged plants have with the landowner. Each method likely will result in disparaging monetary differences; therefore it is important to consider all of these factors and the precedential case law of any particular jurisdiction.

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[1] Dr. Seuss, The Lorax (1971).

[2] Kristine Cordier Karnezis, Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R. 3d 800 (1979).

[3] Id.

[4} Evenson v. Lilley, 295 Kan. 43, 47 (Kan. 2012).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] See generally, Karnezis, supra note 2 (describing the four primary calculation methods across multiple jurisdictions).

[10] Id. at 7.

[11] Karnezis, supra note 2 at 7.

[12] Withers v. Ferrero Const. Co., 320 A.2d 576, 552 (Md. Ct. Spec. App. 1974).

[13] See Missouri & N.A.R. Co. v. Phillips, 133 S.W. 191, 191-92 (Ark. 1910) (holding that testimony regarding value of trees was proper for the jury to make a determination on damages).

[14] Evenson, 295 Kan. 43, at 50.

[15] Karnezis, supra note 2 at 15-17.

[16] Barker v. Missouri Pac. Ry. Co., 145 P. 829, 830-31 (Kan. 1915).

[17] Whitbeck v. New York Cent. R. Co., 36 Barb. 644, 645-46 (N.Y. Gen. Term 1862).

[18] Karnezis, supra note 2 at 15-17; Whitbeck, 36 Barb. 644 at 645-46.

[19] Wm. G. Roe &Co. v. Armour & Co., 414 F.2d 862, 871-72 (5th Cir. 1969).

[20] Augustine v. Dickenson, 406 So. 2d 306, 308 (La. Ct. App. 1981).

[21] Id.

[22] Id. at 308-09.

[23] Samson Const. Co. v. Brusowankin, 147 A.2d 430, 435 (Md. 1958).

[24] Steckman v. Quincy, 165 S.W. 1122, 1124 (Mo. Ct. App. 1914).

[25] Samson, supra note 23 at 435.

[26] Baker v. Ramirez, 235 Cal. Rptr. 857, 865 (Cal. Ct. App. 1987).

[27] Id.

Photo:  Jocelyne Cesari, Radicalization and Religion: How it Happens?, Politics Today, https://politicstoday.org/radicalization-and-religion-how-it-happens/ (Mar. 4, 2021) (using a stock photo from Getty Images).

Authored by Drake T. Conway

The Civil Rights Act of 1964 prohibits employers from discriminating against their employees due to their religious beliefs.[1]  To conform to the law, employers must provide their employees with reasonable accommodation, provided that it does not create undue hardship for the business.[2]   But what is an undue hardship?  The answer to that question has been subject to a host of litigation, which created an erroneous precedent that was remedied by the recent Supreme Court decision Groff v. DeJoy.[3]  To understand the importance of Groff v. DeJoy, an analysis of statutory law, administrative law, and prior case law is necessary.

42 U.S.C. § 200e-2(a)(1) is clear on what it prohibits; namely, it restricts an employer from failing to provide reasonable accommodations for their employees’ religious practices that do not create undue hardship for the employer.[4] The Equal Employment Opportunity Commission’s (“EEOC”) interpretation of § 200e-2(a)(1) mirrors the statute’s own language in requiring the accommodation to not create undue hardship.[5] Therefore, both the statute and the EEOC’s interpretation expressly state that an employer can only reject a reasonable religious accommodation when an employer is faced with an undue hardship.[6]

In Trans World Airlines, Inc. v. Hardison, the United States Supreme Court applied § 200e-2(a)(1). The appellee, Hardison, requested an accommodation to observe the Sabbath.[7]  For the most part, the Court “sidestepped” 42 U.S.C. § 200e-2(a)(1) due to a seniority issue.[8]  Nevertheless, in the limited amount the Court did discuss § 200e-2(a)(1), they opined that undue hardships meant something akin to “substantial burdens.”[9] However, one sentence within the opinion stated, “[t]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”[10]  The term “de minimis,” when translated, most closely means something that is “very small” or “trifling.”[11] Because of this single sentence, many courts adopted a de minimis test that formed an insurmountable hurdle for plaintiffs seeking religious accommodations.[12]

The Hardison test was the leading precedent between 1977 and 2023.  During this period, attorneys who filed suit seeking religious accommodations for their clients were limited to accommodations that cost the employer little to nothing.[13] This strict standard forced those attorneys to balance whether seeking such minimal accommodations was of worth to the client, considering any accommodation exceeding a minor burden was often denied.  The complicated accommodations process resulted in a few cases being decided in a plaintiff’s favor, primarily those related to religious dress.[14]  This is mainly due to the fact that wearing something such as a Hijab or Kippah does not impose additional costs on an employer.

Consider this example: an employer is a large company that produces many types of widgets.  Due to the location of their facility, the employer builds an on-site cafeteria to facilitate easier lunches for their employees.  The cafeteria does not serve any kosher meals, but the cafeteria can order a kosher meal for the same price as non-kosher meals.  These kosher meals, however, require a particular oven that would ultimately cost the employer $100.  Under the Hardison test, this would have created more than a de minimis cost to the employer. Therefore, a court would have rejected any plaintiff who sought a similar religious accommodation at their place of employment.[15]  Luckily for plaintiffs, the Supreme Court remedied this strict standard in Groff v. DeJoy.

In 2019, Groff filed suit because the post office where he was employed would not give him Sundays off so that he could observe the Sabbath.[16]  Groff’s suit failed both in the district court and the Third Circuit Court of Appeals because Groff was unable to show that his accommodation would pose merely a de minimis cost to the post office.[17] The United States Supreme Court granted certiorari.

In Groff, the Supreme Court followed a two-step process to resolve this matter.  First, they examined whether the de minimis test created in Hardison was erroneous.[18]  Second, they determined the proper test to be applied instead of the improper de minimis test.[19]   The Supreme Court swiftly found that the de minimis test created in Hardison was erroneous.[20]  In fact, neither party attempted to defend Hardison’s de minimis test as a correct statement of law in oral arguments.[21]  After deciding that the de minimis test was improper, the Supreme Court had to identify the correct test to supplant the erroneous de minimis test.[22] 

Identifying the correct test was not a challenging task for the Supreme Court.  The Court simply used dictionaries to define “undue” and “hardship.”[23]  When defining these terms, the Court found “undue” to mean “excessive or unjustified” and “hardship” to mean something akin to “more severe than a mere burden.”[24] Therefore, the Court opined that an “undue hardship” is something that creates an excessive or unjustified burden on an employer’s business.[25]  For example, it is not enough to show that an employee’s religious accommodation would create a mere additional cost (a de minimis cost); rather, an employer must show that an employee’s religious accommodation would cause them “substantial additional cost or substantial expenditure.” [26]

As a result of the Court’s decision in Groff, the example situation above will have a much different result.   In the hypothetical case, the kosher meals do not cost the employer any extra money, but the oven will cost the employer a hundred dollars.  Under the de minimis test, a court would likely find that the kosher meals do not create an undue hardship because the meals did not create extra cost to the employer.[27]  However, because the oven would cost the employer $100, the court would have to reject this accommodation because the cost of the oven ultimately created an undue hardship.[28] Since the de minimis has been overturned, attorneys may now successfully argue for religious accommodations that may cost employers money.[29]   Plaintiff(s) religious accommodations are now judged based on whether or not they will cause an employer substantial expenditure.[30]  In this hypothetical, neither accommodation would create a substantial expenditure because a $100 oven is unlikely to constitute a substantial expenditure on a big corporation. This hypothetical case illustrates how Groff v. DeJoy allows plaintiffs to bring successful suits for religious accommodations because companies now face a tougher test to refuse religious accommodations to their employees.[31]

---

[1] 42 U.S.C § 2000e-2(a)(1).

[2] Id.

[3] 143 S. Ct. 2279 (2023)

[4] See 42 U.S.C § 2000e-2(a)(1) (“unable to reasonably accommodate . . . without undue hardship on the conduct of the employer business.”).

[5] 29 C.F.R. § 1605.1.

[6] See 42 U.S.C. § 200e-2(a)(1); 29 C.F.R. § 1605.1.; see also Groff, 143 S. Ct at 2294 (defining the term “undue hardship”).

[7] 432 U.S. 63, 67 (1977).

[8] Hardison, 432 U.S. at 79.

[9] See Groff, 142 S. Ct. at 2294 (discussing how in Hardison, a majority of the opinion talked about substantial expenses).

[10] Hardison, 432 U.S. at 84.

[11]  Groff, 143 S. Ct. at 2294-95

[12]Id. at 2291-92 (“Although this line would later be viewed by many lower courts as the authoritative interpretation of the statutory term ‘undue hardship,’ it is doubtful that it was meant to take on that large of a role.”).

[13] Hardison, 432 U.S. at 84 (explaining that an accommodation could be denied if it made more than a de minimis cost). 

[14] See Selected List of Pending and Resolved and Resolved Cases Alleging Religious and National Origin Discrimination Involving the Muslim, Sikh, Arab, Middle Eastern and South Asian Communities, U.S. Equal Emp’t Comm’n, last updated Sep. 8, 2021, https://www.eeoc.gov/selected-list-pending-and-resolved-cases-alleging-religious-and-national-origin-discrimination (listing numerous cases involving religious dress before the decision of Groff).

[15] See id.

[16] Groff, 143 S. Ct. at 2286-87.

[17] Id. at 2287.

[18] Id. at 2295.

[19] Id.

[20] Id.

[21] Id.

[22] Id. at 2294-95.

[23] Id.

[24] Id.

[25]Id.  

[26] Compare. id. with Hardison, 432 U.S. at 67. (showing that Groff’s test is a harder test to meet to reject accommodations).

[27] See Hardison, 432 U.S. at 84.  

[28] See id.

[29] See id. 2295 (rejecting the Hardison de minimis test).

[30]  See Groff, 143 S. Ct. at 2295.

[31] See id.

Sarah Grillo, Illustration of a gavel resting on a Google logo, in Sara Fischer, Exclusive: Google files motion to dismiss Gannett’s ad tech lawsuit, Axios (2023), https://www.axios.com/2023/09/08/google-gannett-antitrust-lawsuit-motion-dismiss (last visited Apr 11, 2024).

Authored by Alexander Gulas

Could Google become the new Standard Oil?[1] The United States Department of Justice and numerous state attorneys general seem to think so, evident by a recent string of antitrust lawsuits filed against the tech giant, arguing that the company is a monopoly in its current form. Google has undoubtedly placed itself in a leveraged position of power over the past twenty years due to its multifaceted domination of the technology sector and partnerships with other large corporations. From the Google Play app store that comes pre-downloaded on most Android phones, to the near-ubiquitous Google search engine, to Google AdSense’s stranglehold on internet advertising, Google has absorbed huge market shares in the technology sector in ways that many believe violate antitrust laws, and whether Google wins or loses these cases, their outcomes are sure to have a massive effect on United States antitrust litigation in the future.

The first of three major U.S. antitrust lawsuits filed against Google, Utah et al. v. Google LLC, arose in 2021 when 36 states and the District of Columbia brought action against Google for anticompetitive policies regarding the Google application market, Google Play Store.[2] The complaint alleged that Google, which acquired the Android mobile operating system in 2005, imposed the use of its Google Play app store through anticompetitive means such as taking up to 30% of the proceeds from Google Play Store sales, disincentivizing competition from other similar app stores, and pre-installing the Google Play Store on select android devices as the only practical means to obtain apps on those devices.[3] As a result, Google Play Store distributed over 90% of all applications on the Android platform, while no other competing app store possessed more than 5% of the market.[4] These anti-competitive strategies and their clearly monopolistic results painted a very negative picture of Google’s approach to the distribution of Android applications. Consequentially, Google decided to settle the lawsuit.[5]

As per the settlement agreement, Google was forced to pay $700 million to consumers and the states and temporarily change their Play Store policies to allow competition from other app stores.[6] This outcome was indicative of Google’s culpability in engaging in anticompetitive practices, and, according to Connecticut Attorney General William Tong, served as “a loud and clear message to Big Tech” that attorneys general were “prepared to use the full weight of [their] collective authority to ensure free and fair access to the digital marketplace . . . .”[7] The attorney general’s warning would not ring hollow, as the U.S. Department of Justice has since filed two separate ongoing lawsuits against Google for anticompetitive business practices: one regarding the Google Search Engine and the other pertaining to Google’s digital internet advertising technology.[8]

The case pertaining to Google’s search engine was filed by the Department of Justice in 2020, which accused Google of monopolizing the search engine market.[9] The suit alleges that Google’s agreements with Apple and Mozilla, which make Google Search the default web browsers on these respective platforms, violate antitrust laws due to the exclusive nature of the agreements.[10] In response, Google alleges that its browser was not actually exclusive and won the competition to become the default browser for Apple and Mozilla based on the “merits as established and judged by its customers . . . .”[11] However, this case is further complicated by the fact that Google’s agreements with Apple and Mozilla also provide the companies with advertising revenue as compensation for making Google Search their default web browser.[12] This factor ties into the other ongoing Department of Justice antitrust lawsuit against Google for their monopolization of advertising technologies.[13]

This 2023 lawsuit alleges that Google has subverted competition in digital advertising technologies through serial acquisitions and anticompetitive auction manipulation[14]. As a result of these practices, Google now owns a 90% market share of website publisher’s ad servers, half of the advertisement exchange market share, and most of the market for buy-side demand platforms.[15] These huge market shares are indicative of Google’s stranglehold on the digital advertising market, and this stranglehold has allowed Google to promulgate anti-competitive policies such as price gouging and forcing the adoption of their advertising toolkit.[16]

While both antitrust cases against Google are currently ongoing and have unclear resolutions, their outcomes will likely signal a seismic shift in United States antitrust litigation moving forward. If Google is to prevail in these lawsuits, some believe it would be indicative of the fact that the “technology ecosystem has outpaced antitrust law.”[17] In the opposite, a DOJ victory could lead to assertions that “antitrust law is being applied and interpreted far too broadly.”[18] Either outcome will undoubtedly have far-reaching impacts on other companies in the technology sector, as it is already a market that has a high barrier of entry due to the high capital requirements, rapid advancement, and constantly evolving technologies associated with it.[19] As such, other conglomerates such as Microsoft and Apple could likely see similar future litigation if Google loses these antitrust cases.

However, if the Department of Justice loses these lawsuits, it could set a precedent that makes it extremely difficult to topple technology-based monopolies moving forward, as Google’s approach of creating multiple discrete businesses to control different areas in the technology sector has become the default strategy for huge tech empires.[20] The Department of Justice has recognized the anticompetitive dangers this approach may pose and has already filed suit against other tech giants for the monopolization of other markets in the technology sector.[21] Therefore, some believe that only fundamental changes to United States antitrust laws can solve the creation of more tech monopolies if the DOJ loses its ongoing lawsuits.[22]

With this in mind, The Department of Justice’s string of antitrust cases against Google may mark a turning point for antitrust litigation in the United States. For years the technology sector has seen unfettered growth, shielded by the complicated nature of their businesses. This growth seems to be coming to a head, with the United States taking increasing exception to the ever-growing centralization of power within the technology sector. As such, the results of Google’s ongoing antitrust litigation may serve as an indicator of how the United States will regulate monopolies in a time where they have become omnipresent.

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[1] See Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 81, 31 S. Ct. 502, 524, 55 L. Ed. 619 (1911) (holding that the company formerly known as Standard Oil, a major 20^th century oil conglomerate owned by the Rockefeller family, violated the Sherman Antitrust Act due to anticompetitive practices and its formation of a monopoly).

[2] See State of Utah et al v. Google LLC et al, No. 3:21-cv-05227 (N.D. Cal. July 7, 2021).

[3] See Compl., ¶¶ 2, 3, 4, 9, 10, 62, Utah v. Google, No. 3:21-cv-05227 (N.D. Cal.).

[4] See id. ¶ 10.

[5] Google to pay $700 million in settlement over Google Play Store lawsuit: AG, NBC Connecticut (Dec. 19, 2023 4:49 PM), https://www.nbcconnecticut.com/news/local/google-to-pay-700-million-in-settlement-over-google-play-store-lawsuit-ag/3175319/

[6] See id. (requiring Google to pay $630 million in restitution to consumers who made purchases on the Google Play Store and $70 million to the states for their sovereign claims, while also prohibiting Google from entering contracts requiring the Play Store to be the exclusive, pre-loaded app store on device home screens, reduce warnings regarding the download of third-party applications, and submit compliance to an independent monitor for at least five years).

[7] Id.

[8] See Press Release, Department of Justice, Justice Department Sues Google for Monopolizing Digital Advertising Technologies (Jan. 24, 2023), https://www.justice.gov/opa/pr/justice-department-sues-google-monopolizing-digital-advertising-technologies [hereinafter DOJ Google Press Release]; see also John Villasenor, A primer on some key issues in U.S. v. google, Brookings (2023), https://www.brookings.edu/articles/a-primer-on-some-key-issues-in-u-s-v-google/ (last visited Apr. 11, 2024).

[9] See Villasenor, supra note 8.

[10] See id. (indicating that these agreements may be exclusionary to other browsers).

[11] Id.

[12] See id. (indicating that Google’s interconnected operations support each other).

[13] See DOJ Google Press Release, supra note 8.

[14] See id.

[15] See id.

[16] See id.

[17] See Villasenor, supra note 8.

[18] Id.

[19] See Tech talk: Overcoming market entry barriers with access to technology, FasterCapital (2024), https://fastercapital.com/content/Tech-Talk–Overcoming-Market-Entry-Barriers-with-Access-to-Technology.html#:~:text=The%20tech%20industry%20is%20characterized,necessary%20technical%20expertise%20or%20understanding. (last visited Apr. 11, 2024) (outlining the barriers of entry in the tech industry).

[20] See Challenging Big Tech, SOMO (2024), https://www.somo.nl/our-work/sectors/big-tech/#:~:text=They%20have%20relied%20on%20and,for%20different%20communities%20to%20interact. (highlighting how big tech companies rely on network effects and immense data collection to ensure consumers must use their products).

[21] See Press Release, Department of Justice, Justice Department Sues Apple for Monopolizing Smartphone Markets (Mar. 21, 2024),https://www.justice.gov/opa/pr/justice-department-sues-apple-monopolizing-smartphone-markets (“Apple’s Broad-Based, Exclusionary Conduct Makes It Harder for Americans to Switch Smartphones, Undermines Innovation for Apps, Products, and Services, and Imposes Extraordinary Costs on Developers, Businesses, and Consumers”).

[22] See AI Now Institute, Antitrust and competition: It’s time for structural reforms to big tech, AI Now Institute (2023), https://ainowinstitute.org/publication/antitrust-and-competition (last visited Apr. 11, 2024).

Photo Credit: Mallory Gaines, The Board of Trustees Mission to Improve Education, (Nov. 30, 2023), E.TENN., https://easttennessean.com/2023/11/30/the-board-of-trustees-mission-to-improve-education/

Authored by Jacob Powell

In D.J. through O.W. v. Connecticut State Board of Education, D.J. was a 21-year-old student with a disability who was about to graduate high school and lose access to special education services. [1]After realizing that D.J. had matriculated from grade to grade without learning basic skills, such as knowing how to count money or use public transportation, D.J.’s parents sued school officials to stop them from terminating D.J.’s services.[2]  Under Connecticut state law, schools were not required to provide services to special education students once a student had reached the age of 21.[3]  At the same time, however, state law permitted schools to provide similar services to non-disabled students until the age of 22.[4]  D.J.’s parents filed a putative class action suit, arguing that D.J. – and other special education students between the ages of 21 and 22 – were entitled under the Individuals with Disabilities Act (“IDEA”) to postsecondary services until age 22, just like his non-disabled peers.[5]

In response, the Defendant filed a Motion for Summary Judgment, arguing that D.J. had no standing to bring the suit because he had already earned the requisite credits to be awarded a high school diploma, which terminated his right to a free and appropriate public education (“FAPE”) under the IDEA.[6]  The IDEA defines a FAPE as “special education and related services” that are “specially designed . . . to meet the unique needs of a child with a disability . . . .”[7] It is important to note that the awarding of a standard high school diploma terminates a student’s right to a FAPE under the IDEA.[8] Here, although the Plaintiffs eventually moved to substitute D.J. with a different class member to cure the potential standing defect,[9] the district court ordered an evidentiary hearing to determine whether D.J. had ever accepted a diploma in the first place. After the hearing, the court concluded that when D.J. was initially offered his diploma by school officials, his parents refused to accept it.[10]  And because they refused to allow the school to award D.J. his diploma, the court found that D.J.’s entitlement to a FAPE, including his entitlement to postsecondary services, remained intact.[11]

In part, the court relied on the exception found in 34 C.F.R. § 300.102 of the IDEA, which states that students who “have graduated from high school but have not been awarded a regular high school diploma” remain eligible for a FAPE.[12] In essence, the court’s ruling meant that a special education student’s right to a FAPE was extinguished not on the number of credits earned but rather upon the student’s physical receipt of the diploma.[13]  

Existing research shows that students who lack the necessary skills to be independent and self-sufficient after graduation generally exhibit poorer post-graduation employment outcomes when compared to their non-disabled peers.[14]  In fact, in February 2024, a survey report from the U.S. Department of Labor revealed that more than 65 percent of people without a disability were actively employed.[15]  But for people with a disability – only 22 percent reported employment.[16] Why is this important? Well, take, for example, D.J., who had completed the number of credits required to graduate but, at 21 years of age, could not count money and did not know how to use public transportation.[17]  It is evident that D.J. lacked the basic skills required for a simple visit to the grocery store, much less the skills necessary to gain and sustain full-time employment. The additional services at issue in this case were to increase D.J.’s ability to gain and sustain employment after graduation. Therefore, the additional services would have had not only a personal, social benefit for D.J., but also an economic benefit for the workforce writ large. 

Not only are postsecondary transition services necessary to prepare students like D.J. for the workforce, but they also help students transition into college, and, ideally, into independent living.[18]  But how are effective transition goals implemented and maintained? As a component of special education services, transition goals must be included in the student’s individualized education program (“IEP”).[19]  An IEP is a written statement detailing a student’s present level of academic performance, including short-term and long-term goals for improvement, as well as the services required to reach those goals.[20]  In 2017, the Supreme Court broadened the scope of the IEP in Endrew F. v. Douglas County School District, requiring schools to focus on more than just grade-level advancement as a metric for success.[21]  Instead, the Court unanimously held that an IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” because every child deserves the right to meet “challenging objectives.”[22]  Therefore, the requirement to provide “challenging objectives” would entail more than offering the bare minimum transition services for students. As the Court put it, “[w]hen all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.”[23]

Since Endrew F., schools have an obligation to create IEPs that are holistically tailored to the needs of the student, addressing not only a student’s academic progress, but social, emotional, and behavioral progress, too.[24]  The cessation of services – i.e., a FAPE – therefore should not hinge on whether a student has successfully advanced from grade to grade, or like in D.J.’s situation, whether the student has completed enough credits, but instead, whether the student has made appropriate progress toward his stated IEP goals.[25]  In other words, school officials should strive to provide services that not only promote graduation but also prepare the student to participate in post-graduation employment or educational experiences.[26]

In the context of transition services, the ruling in D.J.’s case comports with the decision in Endrew F. because D.J. had not made appropriate progress before graduation. Ultimately D.J. was given additional time to master important life skills because the court relied on the implicit right to diploma deferral carved out in in § 300.102 of the IDEA. If transition goals contained in the IEP have not been met, then parents, disability advocates, and attorneys are empowered by § 300.102 to argue for diploma deferral and extend the right to special education services. This is true especially when a school is attempting to graduate a student who has advanced from grade to grade and has completed the required credits for graduation.

In all, D.J.’s case highlights why transition services are important: because they teach skills and “promote successful post-school employment or education” opportunities for students with disabilities.[27]  And in most cases, students with disabilities are not asking for extraordinary accommodations from school officials. In fact, like D.J., they may simply want to learn how to count money or ride a bus.

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[1] D.J. through O.W. v. Conn. State Bd. of Educ., No. 3:16-CV-01197 (CSH), 2019 WL 1499377 (D. Conn. Apr. 5, 2019), aff’d sub nom. A.R. v. Conn. State Bd. of Educ., 5 F.4th 155, 160 (2d Cir. 2021).

[2]Id.

[3]Id. at 158.

[4]Id.

[5]Id. at 158-59.

[6]Id.

[7]20 U.S.C. § 1401(29). 

[8]34 C.F.R. § 300.102(a)(3)(i).

[9]A.R., 5 F.4th at 158-59.

[10]Id. at 161-62.

[11]Id. at 162-63.

[12]34 C.F.R. § 300.102(a)(3)(ii).

[13]See id.; A.R., 5 F.4th at 162.

[14]Inst. of Educ. Scis., NCSER 2011-3005, The Post-High School Outcomes of Young Adults With Disabilities (2011), https://ies.ed.gov/ncser/pubs/20113005/pdf/20113005.pdf.

[15]Bureau of Labor Stats., U.S. Dep’t of Lab., USDL-24-0349, Persons with a disability: labor force characteristics – 2023 (Feb. 23, 2024), https://www.bls.gov/news.release/pdf/disabl.pdf.

[16] Id.

[17]See A.R., 5 F.4th at 162.

[18]34 C.F.R. § 300.320(b)(1) (Transition services are “[a]ppropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills . . . .”).

[19]Id. § 300.320.

[20]Id. § 300.320(a)(1)-(b)(1) (“IEP means a written statement for each child . . . that includes present levels of academic achievement and functional performance . . . [and] appropriate measurable postsecondary goals . . . .”).

[21]580 U.S. 386, 400 (2017).

[22]Endrew F., 580 U.S. at 388, 399.

[23] Id. at 402–03.

[24]See id. at 403–04; see alsoH.W. by & through Jennie W v. Comal Indep. Sch. Dist., 32 F.4th 454, 468 (5th Cir. 2022) (holding that Endrew F. favors an “overall academic record-based review . . . that should be conducted in a fact-intensive, individualized, [and] holistic manner”); L.J. by N.N.J. v. Sch. Bd. of Broward Cnty., 927 F.3d 1203, 1214 (11th Cir. 2019) (“[R]eviewing courts should not rely too heavily on actual educational progress . . . [i]t is merely one piece of evidence courts may use in assessing whether a school failed to implement substantial or significant provisions of the IEP.”).

[25] See Endrew F., 580 U.S. at 388, 399.

[26] See id.

[27]20 U.S.C. § 1400(c)(14).

Jack Richardson, Illustration of judges being shop for, in How “Judge-Mandering” is Eroding Trust in America’s Judiciary, The Economist (May 9, 202), https://www.economist.com/leaders/2024/05/09/how-judge-mandering-is-eroding-trust-in-americas-judiciary

Authored by Sonia Lazaro

In March 2024, the Judicial Conference of the United States[1] proposed a new policy to curtail “judge shopping” – a tactic used by state attorney generals and other litigants to file lawsuits in courts where a preferred judge “is known or suspected to be sympathetic to a particular cause.”[2]

This tactic has become increasingly effective for plaintiffs who wish to litigate “hot button” topics such as immigration, abortion, environmental, and even patent cases in federal courts.[3] But in a country where forum shopping has become seemingly inevitable, albeit an often unfavored tactic,[4] proponents of judge shopping have been pushing back against the new policy, claiming it violates 28 U.S.C. § 137.[5] Under this statute, federal courts are given “wide latitude to establish case assignment systems, permitting flexibility in managing their caseloads efficiently and in a manner that best suits the various needs of the district and the communities they serve.”[6] After receiving intense pushback, the Judicial Conference issued guidance that states that federal district courts have discretion in deciding how to implement this new policy.[7] This suggests that the new policy may not effectively curtail judge shopping, especially in federal courts where judge shopping has been encouraged by the judges themselves.[8]

While forum shopping has been occurring for years and is “driven by the search for favorable substantive law, favorable procedural rules, or ‘home court advantage,’”[9] judge shopping encourages litigants to file suits in courts who have adopted “administrative norms and practices that align with plaintiff preferences, such as predictable judge assignment procedures, favorable case management norms, and preferential motions practices.”[10] Judge shopping is trendy in federal judicial districts with small divisions because they usually only have one or two judges, where a case will have a high chance of assignment to a sympathetic judge.[11] Indeed, judge shopping has occurred for some time, as evidenced by the “patent litigation hotbeds” in the Eastern District of Texas and the District of Delaware.[12] The Eastern District of Texas had 630 new patent cases filed in 2023, while the District of Delaware drew 427 patent suits.[13] Within Texas, Chief Judge Rodney Gilstrap of the Marshall Division in the Eastern District of Texas and Judge Alan Albright of the Waco Division in the Western District of Texas have been competing for patent litigation cases, where Judge Albright himself drew 527 patent suits in 2023.[14] Even after the Western District of Texas implemented its case randomization policy in 2022, Judge Gilstrap and Judge Albright “were assigned more patent suits individually than any other judicial districts received collectively in 2023.”[15]

The “patent litigation hotbeds” in Texas and Delaware are just one example of how litigants utilize judge shopping. Picking up on how effective this tactic is, litigants have recently been using judge shopping to obtain favorable results regarding issues that have nationwide ramifications.[16] For example, the Alliance for Hippocratic Medicine (“AHM”) filed suit against the U.S. Food and Drug Administration (“FDA”) in the Northern District of Texas in the Amarillo division, where the case was assigned to former President Trump-appointed Judge Matthew Kacsmaryk because he was the only presiding judge.[17] Judge Kacsmaryk was formerly the deputy counsel for the deeply conservative religious liberty law firm First Liberty Institute, which was involved in litigation over reproductive health care while he was deputy counsel.[18] AHM sued the FDA over its approval of the medical abortion drug, Mifepristone, seeking a preliminary injunction ordering the FDA to suspend its approval of the drug.[19] Judge Kacsmaryk stayed the FDA’s approval and granted the nationwide preliminary injunction,[20] but the U.S. Supreme Court subsequently stayed his order until the case could be appealed to the Fifth Circuit and heard by the Supreme Court upon a petition for a writ of certiorari.[21] After granting certiorari, the Supreme Court heard oral arguments on March 25, 2024, with an expected ruling coming before the Court’s term ends in June.[22] This case highlights the type of nationwide “high-stakes” cases litigants use the judge shopping tactic on.

Unsurprisingly, the Texas Attorney General and other private litigants have brought more “hot button” cases to Amarillo for favorable outcomes from Judge Kacsmaryk. He has “reinstated the Trump-era ‘Remain in Mexico’ policy,”[23] he “struck down efforts from the Biden administration to protect LGBTQ workers and trans youth . . . [a]nd he ruled that a longstanding federal program that gives teens confidential contraception violated state law.”[24] However, other federal judges have aided the curtailment of judge shopping, like Judge Liles Burke of the Northern District of Alabama, who recently unsealed a report threatening sanctions against a group of lawyers fighting for LGBTQ+ rights who allegedly “purposefully attempted to circumvent the random case assignment procedures” of the Alabama district courts.[25] In another recent case, Judge Mark Pittman of the Northern District of Texas ordered the plaintiffs to explain the case’s connection to the court because there appeared to be “an attenuated nexus to the Fort Worth Division.”[26]

It remains to be seen if the new discretionary judge shopping policy will at least somewhat prevent litigants from hand-picking judges who seek to change federal laws and policies. What is evident is that policymakers and judges alike have varying viewpoints on the controversial tactic and the new policy.[27] The implementation and adoption of the policy will also vary. No matter one’s political leanings, this should not stop litigants and citizens from considering the widespread effects of judge shopping, especially when the cases involve significant and high-stakes national issues.

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[1] Governance & the Judicial Conference, United States Courts (last visited Mar. 20, 2024), https://www.uscourts.gov/about-federal-courts/governance-judicial-conference#:~:text=Judicial%20Conference%20of%20the%20United%20States&text=It%20convenes%20twice%20a%20year,legislation%20involving%20the%20Judicial%20Branch. (“At the national level, the Judicial Conference serves as the policymaking body for the federal courts. It convenes twice a year to consider administrative and policy issues affecting the federal court system, and to make recommendations to Congress concerning legislation involving the Judicial Branch.”).

[2] Tobi Raji, U.S. Courts Clarify Policy Limiting ‘Judge Shopping’, The Washington Post (March 16, 2024, 12:51 p.m.), https://www.washingtonpost.com/politics/2024/03/16/judge-shopping-guidance-abortion-patent-courts/.

[3] Raji, supra note 3.

[4] J. Jonas Anderson & Paul R. Gugliuzza, Federal Judge Seeks Patent Cases, 71 Duke L. J. 419, 428 (2021).

[5] Raji, supra note 3; see 28 U.S.C. § 137(a) (“The business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court. The chief judge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases . . . .”).

[6] Memorandum from the Comm. on Ct. Admin. and Case Mgmt. of the Jud. Conf. of the U (March 15, 2024), https://fingfx.thomsonreuters.com/gfx/legaldocs/gkvldqznrvb/03152024court-random.pdf.

[7] Nate Raymond, US Judiciary Says Courts Have Discretion to Adopt ‘Judge Shopping’ Policy, Reuters (March 15, 2024, 7:18 PM), https://www.reuters.com/legal/us-judiciary-says-courts-have-discretion-adopt-judge-shopping-policy-2024-03-15/.

[8] See Anderson & Gugliuzza, supra note 5, at 421 (noting how the lone district judge sitting in Waco, Texas, Judge Alan Albright, has made the Waco federal courthouse a “patent litigation hotbed” by expressing his desire to hear patent cases through advertising to patent plaintiffs everywhere).

[9] J. Jonas Anderson, Court Competition for Patent Cases, U. Pa. L. Rev. 631, 634 (2015).

[10] Anderson, supra note 10, at 635.

[11] Alice Clapman et al., Courts Move to Bolster Fairness by Addressing ‘Judge Shopping’, Brennan Center for Justice (Mar. 15, 2024), https://www.brennancenter.org/our-work/analysis-opinion/courts-move-bolster-fairness-addressing-judge-shopping.

[12] Anderson, supra note 10, at 632.

[13] Michael Shapiro & Lauren Castle, Top Patent Venues are Two Steps Ahead of Judge-Shopping Guidance, Bloomberg Law (Mar. 27, 2024, 4:05 AM), https://news.bloomberglaw.com/ip-law/top-patent-venues-are-two-steps-ahead-of-judge-shopping-guidance.

[14] Shapiro & Castle, supra note 14.

[15] Id.

[16] Clapman, supra note 12.

[17] Eleanor Klibanoff, Federal Judge at Center of FDA Abortion Drug Case Has History with Conservative Causes, The Texas Tribune (Mar. 15, 2023, 10:00 AM), https://www.texastribune.org/2023/03/15/federal-judge-amarillo-abortion-fda/.

[18] Klibanoff, supra note 18.

[19] All. for Hippocratic Med. v. U.S Food & Drug Admin. (The Mifepristone Case), 668 F. Supp. 3d 507, 522-23 (N.D. Tex. 2023).

[20] The Mifepristone Case, 668 F. Supp. at 560.

[21] See Danco Labs., LLC v. All. for Hippocratic Med., 143 S. Ct. 1075 (2023) (granting Application for Stay pending the disposition of the appeal and disposition for a writ of certiorari).

[22] Eleanor Klibanoff, U.S. Supreme Court Takes Up Texas Case Challenging Abortion Pill Access, The Texas Tribune (Mar. 26, 2024), https://www.texastribune.org/2024/03/26/texas-abortion-pill-supreme-court/.

[23] See Texas v. Biden, 20 F.4^th 928, 1004 (5th Cir. 2021) (affirming the district court’s nationwide injunction against the Government’s implementation of the Migrant Protection Protocols), rev’d, 142 S. Ct. 2528 (2022).

[24] Klibanoff, supra note 18; see Neese v. Becerra, 640 F. Supp. 3d 668, 684 (N.D. Tex. 2022) (holding that § 1557 of the Affordable Care Act does not prohibit discrimination based on sexual orientation or gender identity);Deanda v. Becerra, 645 F. Supp. 3d 600, 628-29 (N.D. Tex. 2022) (holding that “administration of the Title X program violates the constitutional right of parents to direct the upbringing of their children and Texas Family Code § 151.006(a)(6)”), a’ffd in part, No. 23-10159, 2024 WL 1059721 (5th Cir. Mar. 12, 2024).

[25] Final Report on Inquiry, In re Amie Adelia, No. 2:22-mc-3977-WKW (M.D. Ala., N.D. Ala., S.D. Ala., Oct. 27, 2023), https://fingfx.thomsonreuters.com/gfx/legaldocs/jnvwxreeypw/03192024alabama_report.pdf; Nate Raymond, LGBTQ Rights Lawyers Face Potential Sanctions Over Alabama ‘Judge Shopping’, Reuters (Mar. 20, 2024, 6:53 PM), https://www.reuters.com/legal/government/lgbtq-rights-lawyers-face-potential-sanctions-over-alabama-judge-shopping-2024-03-20/.

[26]Order, Chamber of Com. of the U.S. v. Consumer Fin. Prot. Bureau, No. 4:24-cv-00213-P (N.D. Tex. Mar. 18, 2024) (finding that “only one plaintiff of the six in this matter has even a remote tie to the Fort Worth Division”).

[27] See Nate Raymond, US Senate Republicans Push Back Against Anti ‘Judge Shopping’ Policy, Reuters (Mar. 14, 2024, 1:05 PM), https://www.reuters.com/legal/us-senate-top-republican-mcconnell-criticizes-anti-judge-shopping-policy-2024-03-14/ (“Senate Minority Leader Mitch McConnell on the Senate floor said he hoped the U.S. Judicial Conference . . . would reconsider the ‘half-baked’ policy it adopted on Tuesday designed to ensure that cases challenging federal and state laws are randomly assigned judges.”); Nate Raymond, Senate Democratic Leader Shumer Urges ‘Judge Shopping’ Reform in Texas, Reuters (Mar. 22, 2024, 1:41 PM), https://www.reuters.com/legal/government/senate-democratic-leader-schumer-urges-judge-shopping-reform-texas-2024-03-21/#:~:text=March%2021%20(Reuters)%20%2D%20Democratic,challenging%20government%20policies%20to%20sympathetic (Senate Majority Leader Chuck “Schumer, who along with other Democrats had urged the judiciary to curtail such “judge shopping,” in remarks delivered on the Senate floor on Thursday said the practice had become “rampant” in Texas’ Northern District and should be addressed through the new reform”).

Jason Doiy, Illustration of Social Media Jurors in Ben Hancock, Should You ‘Facebook’ the Jury? Yes. No. Probably, ALM (Apr. 26, 2017, 11:09 AM), https://www.law.com/therecorder/almID/1202784626601/.

Authored by: Harriet S. Shelly

In today’s digital media society, is it ever truly possible to ensure that jury trials are fair and impartial? Pursuant to the Sixth Amendment of the United States Constitution, criminal defendants are guaranteed specific rights, including the right to have their case heard by an impartial jury.[1] Furthermore, the Seventh Amendment also provides civil litigants with essentially the same rights.[2] Beginning with the pre-trial process of voir dire, judges and lawyers seek to uphold these constitutional rights by questioning potential jurors in order to identify whether the individuals can be fair and unbiased during trial.[3] If a potential juror demonstrates any bias that might unfairly impact the trial’s outcome, the juror may be eliminated from the jury selection process.[4] Although the concept of finding an impartial jury may seem straightforward, the emerging presence of social media has presented a few bumps in the road to a fair trial.[5]

With the increasing popularity of social media sites, it is of no surprise that most Americans utilize social media on a daily basis.[6]  Such individuals may use social media for different purposes, such as connecting with others, sharing information, receiving entertainment, or obtaining news.[7]  Furthermore, professionals in the legal sector may even use social media as a way to promote business or gain clientele. Although the widespread use of social media has perks, it nonetheless has complicated the Sixth and Seventh Amendment rights to an impartial jury.[8] More specifically, social media has created the risk that jurors may (1) use social media to communicate, research, and/or post about the trial,[9] or (2) become biased due to outside information from social media sources.[10] In efforts to avoid these potential issues, a federal judiciary committee updated its set of model jury instructions “to deter jurors from using social media to research or communicate about cases.”[11] Regardless of whether the courts strictly follow these instructions or merely utilize them for reference, jurors should be given explicit directions regarding their social media usage throughout the entire trial (even including voir dire).

However, are social media jury instructions actually realistic? For example, during the recent defamation case between Johnny Depp and his ex-wife, Amber Heard, social media sites were buzzing with daily updates of the trial.[12] As a result, experts worried that the tremendous amount of online attention surrounding the case would unfairly sway the jury.[13] One attorney, who was not involved in the case, stated that “[j]uries are only supposed to evaluate the evidence presented in court, but the . . . content online was so significant that it’s unlikely jurors weren’t exposed to it[.]”[14] Additionally, commentators of the trial recommended that when the jury was not in the courtroom, jurors should have been placed in hotel rooms with no access to television or social media.[15] But, was this a reasonable expectation of jurors involved in an extensive six-week-long trial? In other words, how can we protect jurors from outside influences without isolating them from society for prolonged periods of time? These are questions that judges and lawyers should keep in mind when conducting jury trials.

Another recent jury trial that was surrounded by online media included the cases involving Alex Murdaugh[16] Before Murdaugh’s murder case was even heard at trial, it had already been the subject of countless podcasts, documentaries, and news articles.[17] When it came time for his financial trial, which was scheduled after the murder trial, Murdaugh’s attorneys asked the court to delay the start date because of the social media attention from the previous trial.[18] More specifically, the attorneys argued the “publicity from the murder trial will make it difficult to find a fair and impartial jury in [the county] or any other courtroom in the circuit.”[19] So, is it possible that Alex Murdaugh was given fair and impartial jury trials? One attorney stated that although it was “inevitable that the jury pool [would] be familiar with [Murdaugh],” the judge and attorneys should instead focus on jurors who were able to put their preconceived notions aside.[20]

The cases discussed above are examples of high-profile cases which are more likely to receive media attention. However, even with smaller-scale cases, judges and lawyers nationwide should begin to think about how social media may impact all jury trials. As mentioned earlier, given this prevalent issue, trial courts may consider enhancing the voir dire process or giving special jury instructions.[21] Additionally, a change of venue may be another effective way to ensure a fair jury trial.[22] For example, if there is heavy social media coverage in the area of the original venue, the judge may remove the trial to a venue in an area that is not as familiar with the facts of the case.[23]

All in all, judges and lawyers must stay informed on the growth of social media and how it may impact their cases. The widespread use of social media is not expected to slow down with the continuing technological advances being made each day. Thus, in order to preserve the Sixth and Seventh Amendment rights guaranteed by the Constitution, it is vital that judges and lawyers continue to put forth their best efforts to prevent social media from obstructing fair and impartial jury trials.

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[1] U.S. Const. amend. VI; see Sixth Amendment – Right to Trial by Impartial Jury, Annenberg Classroom, https://www.annenbergclassroom.org/resource/right-trial-impartial-jury/ (last visited Feb. 21, 2024) (defining an impartial jury as “independent people from the surrounding community who are willing to decide the case based only on the evidence”).

[2] U.S. Const. amend VII.

[3] Impartial & Representative Juries, Strengthening the Sixth, https://www.strengthenthesixth.org/focus/Impartial-Representative-Jury (last visited Feb. 23, 2024); see Voir dire, Black’s Law Dictionary (11th ed. 2019) (defining “voir dire”as “[a] preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury”).

[4] Id. (“If either party identifies potential biases, that juror may be eliminated ‘for cause’ meaning the challenging party can articulate a legitimate basis for eliminating that juror.”).

[5] See generally social media, Merriam-Webster, https://www.merriam-webster.com/dictionary/social%20media (last visited Feb. 21, 2024) (defining social media as “forms of electronic communication . . . through which users create online communities to share information, ideas, personal messages, or other content”).

[6] See Simon Kemp, Digital 2023: The United States of America, DataReportal (Feb. 9, 2023), https://datareportal.com/reports/digital-2023-united-states-of-america.

[7] See Social Media Fact Sheet, Pew Research Center (Jan. 31, 2024), https://www.pewresearch.org/internet/fact-sheet/social-media/.

[8] See Nicole L. Waters & Paula Hannaford-Agor, Jury Impartiality in the Modern Era, in Encyc. of Criminology and criminal justice 2735, 2735 (2014).

[9] See Dara Kam, Juror’s Social-Media Posts Roil Gillum Case, Tallahassee Reports (May 3, 2023) https://tallahasseereports.com/2023/05/03/jurors-social-media-posts-roil-gillum-case/; Dareh Gregorian, Oh, What a Twit!, New York Post (May 29, 2009, 5:52 AM), https://nypost.com/2009/05/29/oh-what-a-twit/.

[10] See Thaddeus Hoffmeister, Do Unbiased Jurors Exist to Serve at Trump’s 2020 Election Trials in the Age of Social Media?, PBS (Sept. 9, 2023, 3:04 AM), https://www.pbs.org/newshour/politics/do-unbiased-jurors-exist-to-serve-at-trumps-2020-election-trials-in-the-age-of-social-media.

[11] New Jury Instructions Strengthen Social Media Cautions, United States Courts (Oct. 1, 2020), https://www.uscourts.gov/news/2020/10/01/new-jury-instructions-strengthen-social-media-cautions (updating the previous 2012 version of the model jury instructions).

[12] See Anya Zoledziowski, Did Social Media Sway the Johnny Depp Jury?, VICE (June 3, 2022, 12:43 PM), https://www.vice.com/en/article/qjkd4q/johnny-depp-heard-trial-jury-social-media (describing the use of social media in the case as a “social media circus”).

[13] Id.

[14] Id.

[15] Id.

[16] See Thad Moore, The Alex Murdaugh Trial’s First Challenge: Finding 12 Jurors with Open Minds, The Post and Courier (Jan. 22, 2023), https://www.postandcourier.com/murdaugh-updates/the-alex-murdaugh-trial-s-first-challenge-finding-12-jurors-with-open-minds/article_36ed2c58-98de-11ed-99e0-b3abb9b2773f.html.

[17] Id.

[18] Steven Ardary & Anna Harris, Murdaugh Attorneys Argue Impartial Jury Won’t Be Found for Financial Trial, Live 5 News (Nov. 13, 2023, 11:10 AM), https://www.live5news.com/2023/11/13/murdaugh-attorneys-argue-impartial-jury-wont-be-found-financial-trial/.

[19] Id.

[20] Moore, supra note 16.

[21] See Is a Fair Trial Possible in the Age of Mass Media?, Teach Democracy, https://teachdemocracy.org/bill-of-rights-in-action/bria-11-1-a-is-a-fair-trial-possible-in-the-age-of-mass-media (last visited Feb. 24, 2023).

[22] Id.

[23] Id.

Photo Credit: BHPH Report Staff, Experts put 18% Annual Rise in Bankruptcies Into Context, BHPH, (Jan. 4, 2024), https://www.autoremarketing.com/bhph/experts-put-18-annual-rise-in-bankruptcies-into-context/.

Authored by Justin St. Amour

Most ordinary people have never had any experience within the realm of bankruptcy or never want to have any run ins with bankruptcy due to its negative connotation. However, bankruptcy provides a beneficial course of action for those in need of a fresh start in the form of debt relief. Just like the majority of the population with daily life activities, the parties participating in bankruptcy proceedings prefer to have the proceeding close as fast as possible as long as it serves their best interest. Permitting a trustee to sell preference actions as estate property is one solution that bankruptcy courts can provide to carry out the fundamental goals of bankruptcy effectively and efficiently.

Consumers and businesses looking for a fresh start may elect to file for bankruptcy under Chapter 7.[1] A Chapter 7 bankruptcy case is different than other forms of bankruptcy in that it does not consist of reorganization or the filing of a payment plan.[2] Instead, upon the filing of a Chapter 7 petition, a trustee is appointed and is immediately tasked with maximizing the value of the estate by identifying the debtor’s nonexempt property and using that property to pay the debtor’s creditors.[3] This is commonly known as “liquidation.”[4] Once a bankruptcy case has commenced, an “estate” consisting of all of the debtor’s property is created.[5] Any legal or equitable interest in property that the debtor possessed as of the commencement of the case is pulled into the bankruptcy estate.[6] To fulfill the primary goal of liquidating all of the debtor’s nonexempt assets to maximize recovery for creditors, a trustee will attempt to sell any nonexempt property for good value.[7] In doing so, the trustee is tasked with closing the estate “as expeditiously as is compatible with the best interest of [the] parties in interest.”[8]

The Bankruptcy Code grants a trustee certain rights and powers upon the filing of a Chapter 7 bankruptcy petition.[9] Among these powers lie the trustee’s ability to avoid and recover preferential transfers made by the debtor prior to the filing of the petition.[10] A preferential transfer is a pre-petition transfer made by an insolvent debtor to a creditor that favors one creditor over another.[11] In order for the trustee to be able to “claw back” transfers such as these, the transfer must be made either “90 days before the date of the filing of the petition” for non-insiders or “one year before the date of the filing of the petition” for insiders.[12] If a trustee determines that a preferential transfer exists, it may choose to pursue an action to recover those funds or “avoid” the transfer for the benefit of the estate.[13]

Historically, courts have held that a trustee is not permitted to sell preference actions.[14] This is largely because preference actions have never been viewed as property of the bankruptcy estate under section 541 of the Bankruptcy Code. Property under section § 541(a)(1) includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” To be considered estate property under that provision, the debtor itself must hold a legal or equitable interest in the action or asset prior to the filing of the bankruptcy petition.[15] State law generally governs a debtor’s property interest for the bankruptcy estate.[16] And courts have declined to find that preference actions are estate property because no state law gives a debtor itself a property interest in avoiding preferential transfers.[17]

Further, many have argued that a trustee’s ability to avoid and recover preferential transfers is one of many powers Congress granted to the trustee and that a statutorily created “power” is not something that can be sold as estate property.[18] The avoidance powers are specifically granted to a trustee under section 547 and do not arise until a debtor actually files for bankruptcy. Because Congress specifically tasked a trustee with the powers granted to it under section 547, and because this power does not arise until a debtor actually files for bankruptcy, many courts have consistently held that a preference action is simply not a legal or equitable interest that a debtor holds pre-petition and cannot be estate property under section 541(a)(1).

However, courts consistently and routinely find that causes of action belonging to the estate may be sold by the trustee.[19] The Supreme Court has also held that Chapter 5 actions (a.k.a preference action) are causes of action that the bankruptcy estate captures.[20] Putting this together, allowing a trustee to sell a preference action, a Chapter 5 cause of action, would substantially benefit the trustee as he attempts to expeditiously sell estate property to maximize the value of the estate.

The Eighth and Fifth Circuits recently addressed specifically whether a trustee may sell preference actions to third parties and held that a trustee’s avoidance powers are part of the bankruptcy estate and, therefore, can be sold under section 363.[21]

The Eighth Circuit in Simply Essentials was the first circuit court to explicitly hold that a preference action may be sold by the trustee. The court in Simply Essentials concluded that Chapter 5 avoidance actions are estate property and, therefore, may be sold by the trustee under section 363.[22] In reaching its decision, the court relied on a principle laid out by the Supreme Court that a debtor need not hold a possessory interest in property to be considered property of the bankruptcy estate.[23] Instead, the Eighth Circuit recognized that a debtor’s pre-petition “inchoate or contingent interests” are included as estate property.[24] Applying those principles, the Eighth Circuit determined that because a debtor has the right to file for bankruptcy, that right creates an inchoate interest in preference actions as of the commencement of the case and is property of the bankruptcy estate under section 541(a)(1).[25]

Importantly, the Eighth Circuit held that even if preference actions are not estate property under section 541(a)(1), they are property of the estate under section 541(a)(7).[26] Section 541(a)(7) includes as estate property “[a]ny interest in property that the estate acquires after the commencement of the case.”[27] Interpreting that provision, the court concluded that the Bankruptcy Code itself makes preference actions available to the estate post-petition and, therefore, captures preference actions as estate property.[28]

The Appellant in Simply Essentials raised two arguments against rendering preference actions as part of the bankruptcy estate.[29] The Appellant first argued that an interpretation including preference actions as estate property was not appropriate because it rendered section 541(a) redundant and superfluous.[30] The court acknowledged the possible surplusage in its interpretation but decided (1) that the “canon against surplusage is not an absolute rule[],”[31] and (2) that the provision’s legislative history coupled with the complexity of the Bankruptcy Code itself allowed for its conclusion even if it did create some surplusage.[32] The Appellant further argued that because a trustee acts on behalf of all creditors in a fiduciary capacity, allowing a trustee to sell preference actions would be a violation of that duty.[33] The Eighth Circuit rejected that argument by recognizing that a trustee’s fiduciary duties include maximizing the value of the estate and that the trustee, in some instances, cannot financially afford to pursue the action or does not have enough time to pursue the action. [34] Due to these concerns, the court found that allowing a trustee to sell a preference action may actually be the best and most efficient option for a trustee to fulfill his fiduciary obligations and maximize the value of the estate.[35]

Most recently, the Fifth Circuit in South Coast Supply Company echoed the reasoning of the Eighth Circuit and held that even though a trustee historically has been the only party permitted to bring a preference action, preference actions are causes of action that a debtor holds pre-petition and are thus property of the bankruptcy estate that may be sold.[36] In concluding that a trustee may sell a preference action to an outside creditor or third party, the Fifth Circuit specifically noted that section 541(a)(1) is to be read broadly and that “conditional, future, speculative, or equitable nature[s] of an interest [do] not prevent it from being property of the bankruptcy estate.”[37] Applying that principle and adopting the Eighth Circuit’s reasoning, the court in South Coast Supply Company found that a debtor holds a sufficient interest in claims to avoid preferential transfers as of the commencement of the case to be included as estate property under section 541(a)(1).[38]

To support its conclusion further, the Fifth Circuit noted that the Bankruptcy Code captures causes of action as estate property.[39] It  acknowledged, same as the Eighth Circuit did in Simply Essentials, that section 541(a)(1) includes as estate property any property “made available to the estate by other provisions of the Bankruptcy Code.”[40] The Fifth Circuit reasoned that (1) because the Bankruptcy Code captures causes of action that are made available by other provisions of the Code and that (2) because preference actions are created and lie solely within the Code itself, preference actions fit squarely within section 541(a)(1) and may be sold under section 363.[41]

Again, similar to the Eighth Circuit, the Fifth Circuit held that preference actions are also estate property under the reading of section 541(a)(7).[42] In justifying its conclusion, the court in South Coast Supply Company relied on its own precedent that explained section 541 to be an “all-embracing definition” that includes interests in property that are “created with or by property of the estate.”[43] Following this interpretation, the court held that because preference actions are clearly made available by the Bankruptcy Code after the commencement of the case, they are estate property under section 541(a)(7).[44]

Addressing policy concerns, the Fifth Circuit reiterated that the fundamental and core principle of bankruptcy is to maximize the value of assets and promote equal distribution.[45] To further those underlying policy goals, the court described a situation in which the estate may not have enough funds to pursue the action itself and explained that allowing the trustee to sell a preference action to a better-suited creditor would ultimately allow more flexibility for the bankruptcy court and can theoretically benefit all creditors.[46]

Bankruptcy practitioners, debtors, creditors, and trustees should all be aware of this recent development in preference actions. For a trustee, the ability to sell a preference action to a third party can drastically save valuable time and, in some instances, could inject more funds into the bankruptcy estate than would be if the trustee pursued the action himself.[47] For creditors, the opportunity to bid on preference actions allows them to use more discretion in determining whether they would be better served leaving the pursuit of preference actions in the trustee’s hands, or to take the action up on their own initiative. For practitioners, arguing that debtor’s hold an “inchoate or contingent” interest in preference actions pre-petition may provide the best argument that preference actions are property of the estate under section 541(a)(1). To establish that preference actions are estate property under section 541(a)(7), your best bet may be to follow the reasoning of the Fifth and Eighth Circuit and argue that the Bankruptcy Code itself makes preference actions available after the bankruptcy case commences which is sufficient to be estate property.

From a public policy standpoint, it makes perfect sense to allow a trustee to sell preference actions because doing so may substantially affect the efficiency in maximizing the value of the estate and distributing assets equally. On the other hand, a strict textualist may have a hard time coming to this conclusion given Congress has tasked a trustee with acting in a fiduciary capacity and has granted him with certain “powers” that state law fails to provide for. In sum, the push to allow trustees to sell preference actions has more positive consequences than negative and should continue to be analyzed.

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[1] See Bankruptcy, U.S. Courts, https://www.uscourts.gov/services-forms/bankruptcy#:~:text=Businesses%20may%20file%20bankruptcy%20under,are%20filed%20under%20Chapter%2015 (last visited Mar. 29, 2024) (explaining who may be qualified for certain chapters under the Bankruptcy Code and how bankruptcy may provide benefits).

[2] See Chapter 7 – Bankruptcy Basics, U.S. Courts, https://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-7-bankruptcy-basics (last visited Mar. 29, 2024).

[3] Id.

[4] Id.

[5] Id.

[6] 11 U.S.C. § 541(a)(1).

[7] Chapter 7 – Bankruptcy Basics, supra note 2; see 11 U.S.C. § 363(b)(1) (“The trustee . . . may use, sell, or lease . . . property of the estate . . . .”).

[8] 11 U.S.C. 704(a)(1).

[9] See Mission Prod. Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652, 1663 (explaining that sections 544-553 make up a trustee’s avoidance powers).

[10] 11 U.S.C. § 547.

[11] Id.

[12] Id.

[13] Id. §§ 547, 550(a) (“[T]o the extent that a transfer is avoided under section . . . 547 . . . the trustee may recover, for the benefit of the estate, the property transferred . . . .”).

[14] See generally In re Sapolin Paints, Inc., 11 B.R. 930, 937 (Bankr. E.D.N.Y. 1981) (collecting cases).

[15] In re Bracewell, 454 F.3d 1234, 1237 (11th Cir. 2006) (“That mean the property of the debtor’s estate is property the debtor had when the bankruptcy case commences . . . .”).

[16] Butner v. United States, 440 U.S. 48, 55 (1979).

[17] Brendan Gage, Is There a Statutory Basis For Selling Avoidance Actions, 22 J. Bankr. L. & Prac. 3 Art. 1 (2013).

[18] Id.; In re Teleservices Grp., Inc., 463 B.R. 28, 34 (Bankr. W.D. Mich. 2012) (“Although the recovery of an avoided transfer certainly augments the estate, the trustee’s ability to actually avoid the transfer is not an interest acquired from the debtor, but rather a power that derives from the Code itself.”); In re McGuirk, 414 B.R. 878, 879 (N.D. Ga. 2009) (“A trustee’s avoidance powers, including those under Section[] 547 . . . are unique statutory powers . . . . Standing to assert actions under Section[] 547 . . . is limited to the trustee . . . .”); In re Sweetwater, 55 B.R. 724, 731 (D. Utah 1985) (“The avoiding powers are not ‘property’ but a statutorily created power to recover property.”).

[19] See, e.g., In re Moore, 608 F.3d 253, 257-58 (5th Cir. 2010); In re Parker, 499 F.3d 616, 624 (6th Cir. 2007); In re Lahijani, 325 B.R. 282, 287 (9th Cir. B.A.P 2005).

[20] See United States v. Nordic Village Inc., 503 U.S. 30, 37 (1992) (“[T]he right to recover a post-petition transfer under [section] 550 is clearly a ‘claim’ . . . and is ‘property of the estate’ [under section 541].”); Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 53-54 (explaining that fraudulent conveyance actions under section 548(a)(2) are statutory causes of action).

[21] In re S. Coast Supply Co., 91 F.4th 376, 385 (5th Cir. 2024); Pitman Farms v. ARKK Food Co. (In re Simply Essentials, LLC), 78 F.4th 1006, 1011 (8th Cir. 2023).

[22] 78 F.4th at 1011.

[23] Simply Essentials, 78 F.4th at 1008-09 (quoting United States v. Whiting Pools, Inc., 462 U.S. 198, 206 (1983)).

[24] Id. at 1009 (citing Segal v. Rochelle, 382 U.S. 375, 379 (1966)).

[25] Id. (“Because debtors have the right to file for bankruptcy . . . the debtor has an inchoate interest in the avoidance actions prior to the commencement of the bankruptcy proceedings. Therefore, avoidance actions are property of the estate under § 541(a)(1).”).

[26] Id. (“Even if we were to conclude the debtor does not have an interest in the avoidance actions prior to the commencement of the bankruptcy proceeding, the avoidance actions clearly qualify as property of the estate under subsection (7) . . . .”).

[27] 11 U.S.C. § 541(a)(7) (emphasis added).

[28] Simply Essentials, 78 F.4th at 1009.

[29] Id.

[30] Id. (“Section 541(a)(6) specifies that proceeds from property of the estate are included in property of the estate. . . . Additionally, other subsections of § 541(a) specify that property from some avoidance actions are property of the estate. . . . Therefore—according to Pitman Farms—if avoidance actions are property of the estate, the Bankruptcy Code would not have to specify the proceeds of such actions are property of the estate.”).

[31] Id. (citing Marx v. Gen. Revenue Corp., 568 U.S. 371, 385 (2013)).

[32] Id. at 1009-10.

[33] Id. at 1010.

[34] Simply Essentials, 78 F. 4th at 1010.

[35] Id. (“When an estate cannot afford to pursue avoidance actions, the best way to maximize the value of the estate is to sell the actions. Our interpretation of the Bankruptcy Code . . . is consistent with the congressional intent behind including a fiduciary duty to maximize the value of the estate.”).

[36] 91 F.4th at 382.

[37] S. Coast Supply Co., 91 F.4th at 382 (citing In re Kemp, 52 F.3d 546, 550 (5th Cir. 1995)).

[38] Id. (citing Simply Essentials, 78 F.4th at 1006).

[39] Id. (citing In re Equinox Oil Co., 300 F.3d 614, 618 (5th Cir. 2002)).

[40] Id. at 381 (citing Whiting Pools, 462 U.S. at 205); Simply Essentials, 78 F.4th at 1008.

[41] Id. at 382.

[42] Id.

[43] S. Coast Supply Co., 91 F.4th at 382 (citing In re TMT Procurement Corp., 764 F.3d 512, 525 (5th Cir. 2014)).

[44] Id.

[45] Id. at 384 (“[B]ankruptcy courts must ensure that fundamental bankruptcy policies of asset value maximization and equal distribution are satisfied.”).

[46] Id.

[47] See id. (describing a situation where the estate was maximized by a preference action sale).

Photo Credit: ABC Amega, Picture of Arbitration Agreement, https://www.abc-amega.com/wp-content/uploads/2020/12/arbitration.jpg (last visited April 1, 2024).

Authored by Samuel David Dantone

In January, the U.S. Supreme Court granted certiorari in the case of Smith v. Spizzirri, with oral arguments to be heard on April 22, 2024.[1]  This case will be the third Federal Arbitration Act  (“FAA”) case the Supreme Court has heard this term, marking the Court’s recent interest in arbitration-related issues.[2]  The question presented on appeal is whether, under the FAA,  a district court has the discretion to dismiss a case when all claims are subject to arbitration or if a court must stay a case.[3]

In the case at bar, current and former delivery drivers sued their “on-demand delivery service” employer in Arizona state court, alleging that the employer violated federal and state employment laws by misclassifying them as independent contractors, failing to pay them required wages, and failing to provide them with paid sick leave.[4]  Defendants removed the case to federal court, and subsequently moved to compel arbitration and to dismiss the case.[5]  While the Plaintiffs agreed that their claims were subject to arbitration, they argued that the district court was required to stay the case pending arbitration under § 3 of the FAA.[6]  The district court disagreed with the Plaintiffs, and in doing so, granted the defendant’s motion to compel arbitration and dismissed the claims without prejudice.[7]  On appeal, the Ninth Circuit reviewed the district court’s interpretation of the FAA and the order compelling arbitration de novo.[8]  

The delivery drivers advanced four arguments in favor of staying the case, rather than dismissing them.  First, the plaintiffs distinguished their case from the Ninth Circuit’s precedent as a case where a party to the suit requested a stay, unlike the precedent,where a stay was never requested by either of the parties.[9]  The plaintiffs argued that this result is consistent with § 3 because the stay is only required “on application of one of the parties.”[10]  Second, the plaintiffs argued that the FAA’s plain text should control, even in light of the Ninth Circuit’s precedent to the contrary.[11]  Third, the plaintiffs argued that Badgerow v. Walters, a recent Supreme Court decision, abrogated Ninth Circuit precedent, permitting the court to look to the plain text of § 3 instead.[12]  Finally, the plaintiffs argued that the district court abused its discretion in disregarding the potential administrative benefits that would have come from the action being stayed rather than dismissed.[13] The Ninth Circuit admitted that “the plain text of the FAA appears to mandate a stay,” however the Ninth Circuit sided with its own binding precedent and the minority of circuit courts, establishing that district courts may dismiss suits when all claims are subject to arbitration.[14]  In affirming the district court below, the Ninth Circuit rejected all the plaintiff’s arguments.

Section three of the FAA provides that, if any issue is referable to arbitration, the court “shall on application of one of the parties stay the trial of the action” until such arbitration is completed.[15]  Statutory interpretation of § 3 has led to a close split among the circuits.  Indeed, the concurring opinion in Forrest v. Spizzirri, identifies the split in asking for the Supreme Court to take up the question.[16]  The majority of circuit courts interpret § 3 as mandating a stay of proceedings when the issues are arbitrable.[17]  The minority of circuit courts permit district courts to dismiss a case when all issues in the action are subject to arbitration.[18]  While characterized as a clean split, the question is not as simple as it may seem. Some courts that side with the majority mandatory-stay approach have stated that where no party has requested a stay, dismissal may be appropriate.[19]  Further, the Sixth Circuit recognized that “a situation in which both parties request a dismissal” may be another circumstance that permits the district court to stray away from the plain text of § 3.[20]  Thus, “on application of one of the parties” may become a necessary phrase to interpret § 3.  In granting certiorari, the Supreme Court will receive another opportunity to resolve the increasingly irreconcilable split in circuit precedent.  The Court will have to decide whether federal courts have discretion to dismiss an action or if they must stay an action when the claims are arbitrable, and if the former, in what circumstances a district court may dismiss the action.

How the Supreme Court interprets § 3 of the FAA has many legal and practical consequences for litigators navigating claims potentially subject to arbitration. First, a decision to adhere to either approach would affect cases’ appealability.  9 U.S.C. § 16 sets out the appeal structure for the FAA.[21]  Section 16 of the Act prohibits appeals of orders in favor of arbitration, such as an order granting a stay under § 3 and an order refusing to enjoin an arbitration.[22]  However, dismissal of an action would permit an objecting party to file an immediate appeal.  The Sixth Circuit in Arabian Motors Group. W.L.L. v. Ford Motor Co., shot down the discretion-to-dismiss approach as “undercut[ting] the pro-arbitration appellate-review provisions of the Act,” because allowing an immediate appeal would “sidestep the clear policy preference of the Act.”[23]  Despite that, commentators in opposition to the mandatory-stay approach have stated that allowing an appeal of an order to arbitrate would not be in contrast to the goals of the FAA.[24]  They state that allowing a party to appeal an order to arbitrate “will adequately protect the rights of the parties by not subjecting them to the arbitral forum if they should not be bound to do so.”[25]  Thus, should the district court have a requirement to stay when requested, a litigator would have to fight the arbitrability of the claims before an arbitration forum rather than before a federal appellate court.  However, whether or not the arbitration panel would be permitted to come to a different conclusion on arbitrability than the court is still a question left open.[26]  The FAA does not address whether the question of arbitrability should be decided by the arbitration panel rather than the court.

Additionally, issuing a stay rather than dismissal may allow the courts to be more effective in their ongoing involvement with the arbitration proceedings.[27]  The FAA contains several provisions that enable the court to assist in arbitration.  Section 5 of the Act allows district courts to appoint arbitrators.[28]  Another provision, § 7, allows district courts to compel the attendance of witnesses before arbitrators.[29]  Finally, the court may confirm, vacate, modify, or correct an award made pursuant to arbitration.[30]  When the case is stayed, jurisdiction is retained by the district court where the action was filed or removed.  A litigator seeking confirmation, vacatur, or modification of an award would need only file a petition in the stayed action, rather than needing a separate basis for subject-matter jurisdiction.  A dismissal, in contrast, would most likely require the parties to file a new action, potentially in front of a different judge unfamiliar with the case.[31]  Filing a new action could lead to increased costs due to the need to serve process again.

Third, and finally, dismissing a case, rather than issuing a stay, could toll the statute of limitations of the action. Staying the case generally will not toll the statute of limitations.[32]  If the action remains stayed in court, the claimant may return to court without the statute of limitations running if the arbitrator declines to hear the case.  However, if the action is dismissed, the arbitrators decline to hear the case, and the statute of limitations runs in that time, the claim may be barred completely if a new action is filed.  This consideration may not be as strong for litigators since courts may start to condition dismissal, assuming they have the discretion to do so, on the defendant waiving any statute of limitations defense.[33]

How the Supreme Court will navigate the interpretation of FAA § 3 remains a mystery, but there are many practical consequences for litigators to consider, whether courts are granted the discretion to dismiss or not.  Litigators should be aware of how the Supreme Court’s ruling will affect the appealability of their claims, the court’s involvement in the arbitration of their claims, and whether they will have statute of limitations issues arise.

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[1] Forrest v. Spizzirri, 62 F.4th 1201 (9th Cir. 2023), cert. granted, Smith v. Spizzirri, No. 22-1218, 2024 WL 133822 (2024).

[2] See Bissonnette v. LePage Bakeries Park St., LLC, 49 F.4th 655 (2nd Cir. 2022), cert. granted, Bissonnette v. LePage Bakeries Park St., LLC., No. 23-51, 2023 WL 6319660 (U.S. 2023); Suski v. Coinbase, Inc., 55 F.4th 1227 (9th Cir. 2022), cert. granted, Coinbase, Inc. v. Suski, No. 23-3, 2023 WL 7266998 (U.S. 2023).

[3] See Forrest, 62 F.4th at 1206 (Graber, J., concurring) (“But I encourage the Supreme Court to take up this question, which it has sidestepped previously . . . .”).

[4] Id.at 1203-04.

[5] Id. at 1204.

[6] Id.; see 9 U.S.C. § 3.

[7] Forrest, 62 F.4th at 1204.

[8] Id.

[9] Id. at 1205.

[10] Id.; see 9 U.S.C. § 3.

[11] Forrest, 62 F.4th at 1205.

[12] Id.; see Badgerow v. Walters, 596 U.S. 1, 4 (2022).

[13] Forrest, 62 F.4th at 1206.

[14] Id. at 1203, 1204-05 (citing Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072, 1074 (9th Cir. 2014) (“[T]his court has long carved an exception if all claims are subject to arbitration.”).

[15] 9 U.S.C. § 3. (emphasis added).

[16] Forrest, 62 F.4th at 1206 (Graber, J., concurring) (“[A]nd on which the courts of appeals are divided . . . .”).

[17] Id. at 1206 n. 4 (“[T]he Second, Third, Sixth, Seventh, Tenth, and Eleventh Circuits require a stay upon application of a party.”); see Katz v. Cellco P’ship, 794 F.3d 341, 345 (2nd Cir. 2015) (citing cases from both approaches).

[18] Forrest, 62 F.4th at 1206 n. 4 (“[T]he Ninth, First, Fifth, and Eighth Circuits permit district courts to dismiss actions subject to arbitration . . . .”); see also Choice Hotels Intern., Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709-10 (4th Cir. 2001) (“Notwithstanding the terms of § 3, however, dismissal is a proper remedy when all of the issues presented in a lawsuit are arbitrable.”).

[19] Armijo v. Prudential Ins. Co. of Am., 72 F.3d 793, 797 (10th Cir. 1995) (“However, in the case before us [where no stay was requested by the parties], we are not faced with a district court’s erroneous failure to enter a requested stay.”); United Steel, Paper and Forestry, Rubber, Mfg., Energy, Allied Indus. v. Wise Alloys, LLC, 807 F.3d 1258, 1268 (11th Cir. 2015) (“The record here contains no indication that either party requested a stay of this action.”).

[20] Arabian Motors Group W.L.L. v. Ford Motor Co., 19 F.4th 938, 942 (6th Cir. 2021) (dicta) (“There may be situations in which a dismissal remains permissible . . . .”).

[21] See 9 U.S.C. § 16.

[22] Id. § 16(b).

[23] 19 F.4th at 942.

[24] Richard A. Bales & Melanie A. Goff, An Analysis of an Order to Compel Arbitration: To Dismiss or Stay?, 115 Penn St. L. Rev. 539, 556 (2011).

[25] Id. at 556-57 (“[A]llowing a party to appeal the order to arbitrate protects that party’s interest in the arbitral forum.”).

[26] See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995) (“[T]he court should give considerable leeway to the arbitrator, setting aside his or her decision only in certain narrow circumstances.”).

[27] See Lloyd v. Hovensa, LLC, 369 F.3d 263, 270 (3d Cir. 2004) (“[T]he District Court has a significant role to play under the FAA even in those instances in which the District Court orders the arbitration of all claims.”).

[28] 9 U.S.C. § 5.

[29] Id. § 7.

[30] Id. §§ 9-11.

[31] Forrest, 62 F.4th at 1206 (“Plaintiffs could file a new action to confirm or vacate any arbitration award.”).

[32] See Zarecor v. Morgan Keegan & Co., Inc., 801 F.3d 882, 889 (8th Cir. 2015) (“We conclude that pursuit of arbitration did not toll the federal statute of limitations.”).

[33] Stewart v. Acer Inc., No. 22-CV-04684-VC, 2023 WL 1463413, at *1 (N.D. Cal. Feb. 1, 2023) (“[I]n an abundance of caution, the case will be stayed unless Acer files something on the docket within 7 days of this order waiving any statute of limitations defense . . . .”).