The Supreme Court Limbers Up to Aid and Abet Trump’s Coup

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan describes how the U.S. Supreme Court is readying itself to declare Trump the winner of the election. Professor Buchanan points out that no court acting in good faith would apply the text of the Constitution or existing Supreme Court precedents in a way that would allow any of this scheme to see the light of day, but based on what Justice Kavanaugh has written and what Justice Gorsuch strongly suggests, the Court might not even have that minimum amount of good faith.

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If the Challengers Prevail on the Merits of the ACA California v. Texas Case, What is the Appropriate Remedy and What Effect Should the Ruling Have on the Entirety of the ACA? Part Four in a Series

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this fourth of a series of columns examining the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider what the appropriate remedy should be if the challengers prevail on the merits of the case. The authors explain why enjoining the 2017 amendment, which zeroed out the potential tax penalty for failure to maintain the specified health insurance coverage, is a more appropriate remedy than striking down the entire ACA.

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The U.S. Supreme Court Cannot Determine the Election Result

AUSTIN SARAT, DANIEL B. EDELMAN

Amherst College Associate Provost Austin Sarat and attorney Daniel B. Edelman argue that there is nothing the Supreme Court can do to prevent governors from certifying slates of electors that actually reflect the vote of the people in their states. Sarat and Edelman explain why Bush v Gore is both inapplicable, and by its own terms, never supposed to be used as precedent.

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Rohi v. Brewer

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-20005

Opinion Date: October 28, 2020

Judge: James C. Ho

Areas of Law: Bankruptcy, Civil Procedure, Legal Ethics

The Fifth Circuit reversed the district court's decision affirming the bankruptcy court's denial of plaintiff's motion for leave to amend. In this case, plaintiff sought to amend his complaint to include allegations that the Brewer & Pritchard attorneys assured him during a brief recess during bankruptcy proceedings that they would treat the bankruptcy court's proposed fees as part of plaintiff's "Gross Recovery" under his written agreement with Brewer & Pritchard. The court held that had plaintiff been granted leave to amend his complaint, his proposed claims—whatever their merit—would not have been subject to dismissal under the doctrine of res judicata. The court explained that the "conduct" plaintiff seeks to challenge is the alleged breach of fiduciary duty—the failure to follow through on the new representations supposedly made to him during the November 2017 hearing. Furthermore, at the time of the hearing, plaintiff could not have even known that the attorneys' assurances were misrepresentations, let alone that he should challenge them as such. The court remanded with instructions that plaintiff's motion for leave to amend be granted.

Nutrition Distribution LLC v. IronMags Labs, LLC

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-55251

Opinion Date: October 29, 2020

Judge: Bress

Areas of Law: Civil Procedure, Legal Ethics

The Ninth Circuit filed (1) an order amending its opinion and denying on behalf of the court a petition for rehearing en banc, and (2) an amended opinion dismissing as untimely plaintiff's appeal from the district court's judgment and affirming the district court's post-judgment denial of attorneys' fees in an action under the Lanham Act. Under Federal Rule of Appellate Procedure 4(a)(1)(A), a notice of appeal must be filed within 30 days after entry of the judgment or order appealed from. In this case, because appellant did not file a notice of appeal within 30 days of the district court's judgment or obtain a Rule 58(e) order extending the time to appeal, the notice of appeal was untimely as to the district court's underlying judgment. However, the panel held that the notice of appeal was timely as to the district court's later order denying attorneys' fees. Finally, the district court did not abuse its discretion in denying fees.

Cornerstone Realty Advisors, LLC v. Summit Healthcare etc.

Court: California Courts of Appeal

Docket: G057176(Fourth Appellate District)

Opinion Date: October 28, 2020

Judge: Richard D. Fybel

Areas of Law: Civil Procedure, Legal Ethics

Plaintiffs-Respondents were Cornerstone Realty Advisors, LLC (CRA) and Cornerstone Ventures, Inc. (CVI). Respondent Winget Spadafora & Schwartzberg, was counsel for Plaintiffs during most of the trial court litigation, referred to as WSS. Defendants-Appellants were Summit Healthcare REIT, Inc. (Summit), Paul Danchik, Daniel Johnson, Dominic Petrucci, Kairos Partners, Inc., and Kent Eikanas. Defendants sought production of CRA’s and CVI’s financial and accounting records, including their general ledgers. Plaintiffs had access to the financial and accounting records, and could and should have produced them without objection or delay. Instead, Plaintiffs carried out a protracted and costly campaign of discovery abuse, which included disobeying several court orders to produce the documents, "with the successful aim of never, ever, producing the requested documents." The trial court responded to this misconduct by imposing monetary sanctions and ordering Plaintiffs’ complaint be dismissed as a terminating sanction. Imposition of terminating sanctions, though significant, was not the subject of this appeal; plaintiffs’ appeal challenging the terminating sanctions was dismissed. The issue this case presented for the Court of Appeal's review was the monetary sanctions imposed by the trial court. Defendants contended the trial court did not award them enough to cover their attorney fees and costs incurred as a result of plaintiffs’ discovery abuses and erred by not making plaintiffs’ trial counsel jointly and severally liable for the monetary sanctions imposed. The Court of Appeal concluded: (1) the trial court's decision to impose monetary sanctions was a reasonable exercise of the court's discretion; and (2) substantial evidence supported the trial court's finding that WSS did not advise the misconduct resulting in the discovery sanctions: [t]he trial court read and considered the discovery referee’s report, which had recommended making WSS liable for the monetary sanctions, but exercised its authority to reach a different conclusion based on the court’s own assessment of the credibility of the declarants and the weight of the evidence. The court did not err in so doing."

Levine v. Berschneider

Court: California Courts of Appeal

Docket: B300824(Second Appellate District)

Opinion Date: October 29, 2020

Judge: Kenneth R. Yegan

Areas of Law: Legal Ethics

John B. Richards, an attorney, appeals from the trial court's order finding him in contempt and the order to pay monetary sanctions for his lack of candor with the trial court about the fact that settlement funds had been paid. The Court of Appeal dismissed the attempt to appeal from the contempt finding and affirmed the sanctions order. The court held that a trial court's judgment or order in a contempt matter is final and conclusive, and the court declined to construe the notice of appeal as a petition for an extraordinary writ. However, the order directing payment of monetary sanctions is directly appealable because it exceeds $5,000. In this case, counsel's decision to not tell the trial court that he had received "word" from opposing counsel, was concealment and a half-truth, violating the attorney's obligation as an officer of the court to be candid with the court. The court rejected the attorney's contention that the trial court lacked subject matter jurisdiction to award sanctions and that he received inadequate notice of the factual basis for the requested order to show cause. Finally, the court held that the trial court properly exercised personal jurisdiction over the attorney.

Travelers Property Casualty Company of America v. 100 Renaissance, LLC

Court: Supreme Court of Mississippi

Citation: 2019-IA-00586-SCT

Opinion Date: October 29, 2020

Judge: Griffis

Areas of Law: Contracts, Insurance Law, Legal Ethics

In 2016, an unidentified driver struck a flagpole owned by 100 Renaissance, LLC, causing $2,134 in damage. Renaissance filed a claim with its insurance company, Travelers Property Casualty Company of America. Renaissance sought coverage under its automobile liability-insurance policy, which included uninsured-motorist(UM) coverage. Travelers denied the claim, determining there was no coverage under the UM policy because the flagpole was not a covered "auto." Renaissance's attorney sent an email to Travelers' claims handler, setting forth the Renaissance's legal arguments as to why coverage should be afforded under Mississippi's UM statute. The claims handler forwarded the email to Travelers' in-house counsel. When the claim was still denied, Renaissance filed suit on a bad-faith failure-to-pay theory. Renaissance took the claim handler's deposition, and asked her to explain the reasons Travelers denied the claim. In an effort to resolve the matter, Travelers paid the full amount for damage to the flagpole. Renaissance, however, continued to litigate its bad-faith claim. Travelers moved for summary judgment. Renaissance responded by asking for a continuance to conduct additional discovery. The additional discovery Renaissance claimed it needed was a production of the emails between the claims handler and the in-house counsel. The trial court granted the request for Travelers to produce the emails for in camera review. After that review, the trial court found that “Travelers ha[d] waived the attorney-client privilege as it relates to attorney Jim Harris.” The trial court ordered Travelers to produce the emails and to produce Harris (in-house counsel) for a deposition. Travelers filed a petition for interlocutory appeal, which the Mississippi Supreme Court granted. The Supreme Court did not disagree with the trial court's determination that the privilege was waived, and affirmed its judgment.