Notable Petitions

The “Notable Petitions” feature lists petitions that likely will later appear on our “Petitions to Watch” list when they are ready for consideration by the Justices.  “Notable Petitions” are those that Tom has identified as raising one or more questions that has a reasonable chance of being granted in an appropriate case.  We generally do not attempt to evaluate whether the case presents an appropriate vehicle to decide the question, which is a critical consideration in determining whether certiorari will be granted.

The newest notable petitions, along with the opinions below and any other briefs filed at the Court so far, follow the jump.

Title: Laborers District Council Construction Industry Pension Fund v. Omnicare
Docket: 09-1400
Issues: Whether claims under Securities Act § 11, 15 U.S.C. § 77k(a), for which proof of fraud or mistake is no element of prima facie liability, are subject to Federal Rule of Civil Procedure 9(b)’s heightened pleading requirement, requiring that a party alleging claims of fraud or mistake “state with particularity the circumstances constituting fraud or mistake”; (2) whether investors seeking relief under Securities Act § 11, for which neither negligence nor fraud is an element of liability, may be required to plead facts showing either fraud or negligence; and (3) whether the courts reverse the burden that Congress placed on certain defendants, of demonstrating due diligence as an affirmative defense, by requiring plaintiffs to plead facts rebutting it.

• Opinion below (6th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

[Note: This petition was distributed for the Justices’ conference on Sept. 27, 2010.]

Title: Erica P. John Fund, Inc. v. Halliburton Co.
Docket: 09-1403
Issues: (1) Whether the Fifth Circuit correctly held that plaintiffs in securities fraud actions must not only satisfy the requirements to trigger a rebuttable presumption of fraud on the market, but must also establish loss causation at class certification by a preponderance of admissible evidence without merits discovery; (2) whether the Fifth Circuit improperly considered the merits of the underlying litigation when it held that a plaintiff must establish loss causation to invoke the fraud-on-the-market presumption.

• Opinion below (5th Circuit)
• Petition for certiorari

Title: United Rentals v. Angell
Docket: 09-1417
Issues: (1) Whether, to satisfy the elements of 11 U.S.C. § 547(b), a bankruptcy trustee must prove that allegedly preferential transfers diminished a bankruptcy debtor’s estate available for distribution to general unsecured creditors; (2) whether the contemporaneous release of contingent setoff rights or a contingent security interest in the property of the estate by a third party as a direct result of an alleged preferential transfer is a valid contemporaneous exchange for new value under 11 U.S.C. § 547(c)(1).

• Opinion below (4th Circuit)
• Petition for certiorari
• Brief in opposition

[Note: This petition was distributed for the Justices’ conference on Sept. 27, 2010.]

Title: Presbyterian Church of Sudan v. Talisman Energy, Inc.; Talisman Energy, Inc. v. Presbyterian Church of Sudan
Docket: 09-1262; 09-1418
Issues: From 09-1262: (1) Whether federal common law tort principles or international law provides the standard for civil aiding and abetting or conspiracy liability under the Alien Tort Statute;  (2) whether the mental element for civil aiding and abetting liability, under either federal common law or international law, permits liability based on a showing that the defendant knowingly provided substantial assistance to gross human rights violations, or whether a plaintiff must also show that the defendant had the intent to assist; and (3) whether ATS plaintiffs may assert conspiracy or joint criminal enterprise theories of liability based on federal common law or international law and, if so, whether, in the context of such joint action, ATS plaintiffs satisfy their burden of proof by demonstrating that the defendant knew of an illegal purpose of the joint criminal enterprise and was assisting to achieve that illegal purpose.

From 09-1418: (1) Whether, under the Alien Tort Statute, federal courts lack subject matter jurisdiction to impose liability on corporations for torts committed in violation of customary international law; (2) whether federal courts lack subject matter jurisdiction to apply ATS extraterritorially to claims for such torts arising entirely outside the United States; and (3) whether causes of action for violations of customary international law exist when (i) the claims are based on events arising solely outside the United States and had no effect on the United States, (ii) the claims are asserted against a foreign defendant not in the custody of the United States, and (iii) a country providing an adequate alternative forum has a close tie to the dispute.

• Opinion below (2d Circuit)
• Petition for certiorari (1262)
• Brief in opposition (1262)
• Amicus brief of International Law Scholars William Aceves et al. (1262)
• Amicus brief of David Scheffer, director of Center for International Human Rights (1262)
• Amicus brief of EarthRights International (1262)
• Amicus brief of Nuremberg Scholars Omer Bartov et al. (1262)
• Amicus brief of the International Commission of Jurists et al. (1262)
• Conditional cross petition (1418)
• Brief in opposition to cross-petition (1418)
• Amicus brief of Professor Malcolm Shaw (1418)
• Amicus brief of Professor James Crawford (1418)

[Note: The petition and cross-petition above were distributed for the Justices’ conference on Sept. 27, 2010.]