Category Archives: U.S. Supreme Court

Supreme Court Grants Cert on Disparate Impact Test

by Jeff Sovern The Supreme Court today granted cert in Mount Holly v. Mount Holly Gardens Citizens in Action, which raises the issue of whether courts can use the disparate impact test in federal Fair Housing Act (FHA) cases. Because the language of the FHA is similar to that of the Equal Credit Opportunity Act […]

The Constitutional Cloud Over the CFPB

Carter Dougherty of Bloomberg has a must-read story on the practical effects of the constitutional controversy over Rich Cordray's appointment. The D.C. Circuit's ruling in Noel Canning, he reports, "has hampered the U.S. Consumer Financial Protection Bureau, slowing some enforcement, impeding recruitment of a second-in-command, and delaying joint ventures with the states." Among other things, the Bloomberg […]

Charles Schwab drops its class-action ban, at least for now

In February, the brokerage firm Charles Schwab won a ruling from a hearing panel of FINRA, the financial industry regulatory authority, invalidating FINRA's rule against class-action bans and allowing Schwab to use a class-action ban in its customer agreements.  The panel concluded that "the amended language used in Schwab's customer agreements to prohibit participation in […]

Third Circuit Invalidates Recess Appointments

by Deepak Gupta A divided panel of the Third Circuit today joined the D.C. Circuit in holding that President Obama's recess appointments to the NLRB are unconstitutional.  The case is NLRB v. New Visa Nursing and Rehabilitation.  From the majority opinion by Judge Smith, who is joined by Judge Van Antwerpen: The central question in […]

Arbitration Fairness Act Reintroduced Today in Congress

by Deepak Gupta The Arbitration Fairness Act of 2013 — legislation that would ban mandatory pre-dispute binding arbitration in consumer and employment contracts — was introduced today in both houses of Congress by Senator Al Franken (D-Minn.) and Rep. Hank Johnson (D-Ga.). New to this version of the bill–an exclusion for antitrust disputes. The House […]

Obama Administration Takes Its Defense of Recess Appointments to the Supreme Court

by Deepak Gupta Earlier today, Solicitor General Don Verrilli filed the government's petition to the Supreme Court, challenging the D.C. Circuit's Noel Canning decision. (Background: There's been a lot of blogging here about Noel Canning, which invalidated President Obama's intersession recess appointments to the National Labor Relations Board and thereby threatened the validity of his simultaneous […]

Walmart Sequel – More SCOTUS Hostility to Class Actions

Today the Supreme Court ruled in Comcast Corp. v. Behrens that an antitrust class action was improperly certified because Justice Scalia and four other Justices found the plaintiffs' damage theory inadequately supported by expert testimony.  Others will no doubt have more to say on this, but I found the majority opinion transparently result-oriented, and disturbing […]

Justices Search for Limits on Preemption of Consumer Claims Based on Federal Transportation Deregulation Laws

Over at SCOTUSblog, I've got two posts up about Dan's City Used Cars v. Pelkey, an interesting preemption case that was argued before the U.S. Supreme Court this week. The case concerns whether transportation deregulation law preempts a suit under state consumer-protection law brought by a man whose car was towed away from his home […]

Debate On the CFPB’s Constitutionality at Georgetown Law

For those of you in Washington: Tomorrow afternoon at Georgetown Law, I'll be at debating C. Boyden Gray on the constitutionality of the CFPB and Rich Cordray's recess appointment. Here's the announcement: The Consumer Law Society, The Federalist Society, and The Georgetown Center for the Constitution present: The Constitutional Challenge to the Consumer Financial Protection […]

Supreme Court Hears Oral Arguments in Major Arbitration Case: American Express v. Italian Colors

by Deepak Gupta Along with the historic Voting Rights Act arguments this morning, the Supreme Court heard oral arguments in American Express v. Italian Colors — a major antitrust arbitration case that we've mentioned on the blog several times over the years (e.g., here and here).  I've been serving as co-counsel for the plaintiffs/respondents in […]