Justices grant three new cases

This morning the Supreme Court added three new cases to its merits docket for next term, on issues ranging from copyright law to criminal procedure and the Employee Income Retirement Security Act. Once again, however, the justices did not act on the case of an Oregon couple who declined to make a custom wedding cake for a same-sex couple.

In Allen v. Cooper, the justices will consider whether Congress had the power to repeal the states’ immunity from lawsuits for copyright infringement when it enacted the Copyright Remedy Clarification Act.

The case arises from the discovery of Blackbeard’s flagship, Queen Anne’s Revenge, off the North Carolina coast. Frederick Allen and his company, Nautilus Productions, filmed the shipwreck and registered copyrights for the videos and photos that they created; in 2015, they filed a lawsuit claiming that North Carolina had violated their copyrights. The state countered that it could not be sued in federal court, and the U.S. Court of Appeals for the 4th Circuit agreed. The 4th Circuit ruled that the CRCA had not validly repealed the immunity granted to the states by the 11th Amendment.

Allen asked the justices to weigh in, telling them that, unless the Supreme Court intervenes, the “creators of original expression will be left without remedy when States trample their federal copyrights.” Today the justices granted that request.

The justices also agreed to review the case of Gonzalo Holguin-Hernandez, who was arrested and sentenced on charges of possessing marijuana with the intent to distribute it. The U.S. Court of Appeals for the 5th Circuit rejected Holguin-Hernandez’s challenge to the length of his sentence, holding that because he had not objected to the sentence when it was imposed, the only question on appeal was whether the sentence was clearly incorrect – which, it ruled, it was not.

Holguin-Hernandez asked the Supreme Court to weigh in. The federal government agreed with Holguin-Hernandez that a criminal defendant does not need to formally challenge a sentence term when it is announced in order to be able to appeal it. It is enough, the government conceded, that he argued for a different sentence than the court imposed. But the government nonetheless urged the Supreme Court to deny review, telling the justices that Holguin-Hernandez’s sentence was reasonable even under the standard that the 5th Circuit used. Despite that recommendation, the justices today agreed to take up Holguin-Hernandez’s case.

Finally, the justices granted review in Retirement Plans Committee of IBM v. Jander, a lawsuit alleging that the fiduciaries of IBM’s stock-ownership plans violated their duty of prudence under ERISA by continuing to invest the plan’s funds in IBM’s stock even though they knew the stock’s market price was artificially inflated. Under the Supreme Court’s 2014 decision in Fifth Third Bancorp v. Dudenhoffer, a plaintiff bringing such a claim must allege that a fiduciary in the defendant’s position could not have concluded that taking a different action “would do more harm than good to the fund.” The justices agreed today to decide whether ERISA plaintiffs can survive a motion to dismiss when they make general allegations that the costs of undisclosed fraud grow over time.

The justices also asked the U.S. solicitor to weigh in on the final determination filed by the river master in a dispute between Texas and New Mexico over the water from the Pecos River. There is no deadline for the federal government to file its brief; the Supreme Court’s online docket indicates that Texas filed its complaint in the case in 1974.

The three cases granted today are likely to be argued in the fall. The justices will meet again for another private conference on Thursday, June 6.

This post was originally published at Howe on the Court.