The Wall Street Journal reports that the US Supreme Court has agreed to hear former Enron CEO Jeff Skilling’s appeal. Now we’ll see if there is any prospect that reason and fairness will prevail in the Enron witch hunt.

The South Carolina Supreme Court gave the national Episcopal Church (“TEC’) a good kick in the teeth last week when it ruled that one of the former parishes in the Episcopal Diocese of South Carolina, All Saints Church on Pawley’s Island, is the rightful owner of its church buildings and other real property. All Saints, which left TEC and the Diocese of South Carolina in 2000, is one of dozens of parish churches that has seceded from TEC over the years. TEC, and its constiuent dioceses, claims that it is the rightful owener of the property of such seceding parishes as a consequence of a provision in its canons that purports to establish a trust in favor of TEC over such property.

Numerous parish churches have challenged the validity of the trust provision without success. The South Carolina Supreme Court, however, categorically rejected the trust theory, holding that a party cannot unilaterally declare a trust over property to which it did not hold legal title. As such the TEC property canon, in South Carolina at least, is unenforceable as a matter of law. And so All Saints – and any other parish in the Diocese of South Carolina that wants to leave – is free.

There has been much buzz on the internet – at least in some of the arcane quarters that I frequent – as to what the impact of this decision will be. Specifically, folks are wondering whether the dozen or so parishes involved in litigation in other states now have a better chance of defeating TEC’s claims to their property, and whether the US Supreme Court is now more likely to hear the appeal of St. James Church in Newport Beach, California, which saw a trial court decision in its favor on the question of property ownership overturned by the California appellate courts. Happy as I am for the members of All Saints, I must regrettably conclude that the hope of its supporters that this court decision will have a wide and dramatic impact on future church property litigation are misplaced. I’ll explain why after the jump.As to the first issue, whether this decision will have an impact on cases pending in other states, its important to bear in mind (and I am astonished at how many people commenting on this case have failed to grasp this fact) that this decision was issued by a South Carolina court, applying South Carolina law to a particular set of facts. No court outside of South Carolina is bound by this decision. Courts in other states may – or maynot – find the opinion persuasive. But those courts are bound to decide the cases before them based upon the law of their own states and the facts of the particular case before them. Much as I wish it were otherwise, the South Carolina decision does not necessarily suggest that there will be a sudden wave of decisions favorable to parish churches and unfavorable to TEC any more than TEC’s heretofore perfect record in church property litigation was a harbinger of a pro-TEC ruling in South Carolina.

As for whether the US Supreme Court is now more likely to take up the California case or some other case because there is a split of authority between South Carolina and all of the states in which the appellate courts have upheld TEC’s property canon. The answer to that question, in my view, is even clearer, and is also no. The Supreme Court has no interest in seeing that there is uniformity in state trust or property law. Indeed, there are many areas in which the law varies from state to state, and where the answer to a legal question will depend solely upon which state’s law applies. This is an unavoidable byproduct of our federalist system and, so long as there are no questions of federal law involved, of no interest to the US Supreme Court. The likelihood that the SCOTUS will take one of these cases is, in my view, extremely limited, unless some First Amendment issue is implicated, which to me seems unlikely.

The Supreme Court ruled Wednesday that individual participants in the most common type of retirement plan can sue under a pension protection law to recover their losses.

The unanimous decision has implications for 50 million workers with $2.7 trillion invested in 401(k) retirement plans.

James LaRue of Southlake, Texas, said the value of his stock market holdings plunged $150,000 when administrators at his retirement plan failed to follow his instructions to switch to safer investments.

The issue in the LaRue case was whether the Employee Retirement Income Security Act permits an individual account holder to sue plan administrators for breaching their fiduciary duties.

The language of the law refers to recovering money for the “plan” rather than for an individual, raising the question of whether a participant can sue solely for himself.

Justice John Paul Stevens, in his opinion for the court, said that such lawsuits are allowed. “Fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive,” Stevens said.

The decision overturned a ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

Unlike people enrolled in traditional pension plans, employees in 401(k) plans, which have exploded in number in the past two decades, choose from a menu of options on where to invest their money. That puts workers squarely in the middle of decision-making about their pensions and inevitably leads to the kind of disputes LaRue has with his plan’s administrators.

“Defined contribution plans dominate the retirement plan scene today,” unlike when ERISA was enacted in the mid-1970s, Stevens said.

Many traditional pension plans guaranteeing a fixed monthly benefit have either been frozen or terminated, and 401(k) plans are the main source of retirement income, said the Air Line Pilots Association, which represents 60,000 pilots at 41 air carriers.

The Bush administration argued in support of workers. The government said the appeals court ruling barring LaRue’s lawsuit would leave 401(k) participants without a meaningful remedy from any federal, state or local court when plan administrators fail to live up to their duties.

Business groups supported LaRue’s employer. They argued that ERISA is aimed at encouraging employers to set up pension plans, while guarding against administrative abuses involving the plan as a whole. The law doesn’t permit individual lawsuits like LaRue’s, the business groups said.

Congress enacted ERISA after some widely publicized failures by companies and labor unions to pay promised pensions. Workers in class-action lawsuits have long relied on the law, most recently in the scandal-ridden collapses of companies like Enron and its 401(k) plan for workers.

The term 401(k) refers to a section of the Internal Revenue Code.

Participants in 401(k) plans do not know how much money they will receive in retirement. Employees invest a certain amount each month and how much they get back depends on how well their chosen investments have performed.

The case is LaRue v. DeWolff, 06-856

Source: Associated Press (via Law.com)

The Inquirer reported in yesterday’s paper on a critical argument that will be held in the US Third Circuit Court of Appeals this Thursday in the long running case of convicted cop killer Mumia Abu Jamal (and truthfully, have there been more than a handful of hot Broadway shows that have run longer than this guy’s appellate litigation?) In any event – as sympathetic as I am to folks who get railroaded by the state and as corrupt as I know the system is, Mumia is guilty. He was given a fair trial, and has had ample opportunity to litigate his appeals. Its time to bring down the curtain on this show and to put a needle into Mumia’s arm.

The United States Supreme Court yesterday refused to hear an appeal from former Wordcom CEO Bernard Ebbers, which means that, unless Ebbers is pardoned, he will serve most, if not all, of the rest of his life in prison. I’ve said it before and will say it now again – sentences in our criminal system, especially white collar sentences, are way, way out of whack.

The California Supreme Court is set to consider whether an intermediate appellate court properly reinstated a second degree murder conviction in the California pit bull presa canario (NB: Thank you, Rachel). mauling/murder case from a few years back. I remember this case when it was tried. Watched most of it on Court Tv. Cheered when the convictions came in, and was appalled when the trial judge took matter into his own hands. These are reprehensible defendants. Sometimes bad facts make bad lad law. The California Supremes must now determine whether this is one of those cases.

On a 5-4 vote, the Supreme Court yesterday overturned a $79.5 million jury award against tobacco company Phillip Morris, holding that the damages award violated the company’s due process rights because, the punitive damages award was intended, at least in part, to punish Phillip Morris for harm allegedly cause to persons other than the plaintiff, “strangers to the litigation,” in the words of Justice Stephen Breyer. While the case is good news for Phillip Morris, it isn’t especially clear how helpful the case will be to future litigants, since the majority did not take the opportunity to stake out any sort of numeric limit on ounitive damage awards. The Court did, however, at least lay down the proposition that plaintiffs will not be permitted to try and impose class action-like liability through the back door. One curiosity is the compsition of the majority in the case. Justice Breyer wrote the opinion, and was joined by Justices Souter, Kennedy, alito and Chief Justice Roberts. Justice Thomas was joined in dissent by Justices Scalia, Stevens and Ginsburg. Justice Thomas dissented on the grounds that he does not believe that limitations on punitive damages are written into the Constitution. It would appear that, where business issues, and not social issues, are involved, the typical voting patterns don’t mean all that much.

The Next Supreme Court Arbitration Case?

Common law judges expressed a negative view toward arbitration, apparently based on a belief that such alternative dispute resolution ousted the court’s jurisdiction. In the United States, the legal landscape fundamentally changed with the passage in 1925 of the Federal Arbitration Act. The purpose of the FAA “was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts.” Motions to compel arbitration for a wide variety of claims arising under the Copyright Act are now routinely granted, so long as the dispute is encompassed by the agreement to arbitrate.

Motions to confirm arbitration awards are also routinely granted, mostly because the grounds for challenging them are so limited. Partiality is one such ground. The standard for determining when the arbitrator was impartial has divided the Fifth Circuit en banc in an 11-5 vote in a copyright dispute, Positive Software Solutions, Inc. v. New Century Mortgage Corp., 2007 WL 111343 (5th Cir. Jan. 18, 2007)(vacating the panel opinion),

The problem stems from the Supreme Court’s opinion in Commonwealth Coatings Corp. v. Continental Casulaty Co., 393 U.S. 145 (1968), and extends to whether Justice Black’s opinion was a majority or plurality opinion. One might think the latter issue relatively straightforward, but apparently it is not, turning on the weight to be given to Justice White’s concurrence and his statement that he was “glad to join” the Black opinion, thereby supplying the fifth vote. White’s concurring opinion however sets forth a narrower ground for the decision, and because of this all circuit courts except the Ninth have concluded that Justice Black’s represents only a plurality opinion. (Ses Schmitz v. Zilveti, 20 F.3d 1043 (9th Cir. 1994)). There is also widespread dissatisfaction among the lower courts with Commonwealth, plurality or not, see e.g., Judge Posner’s early opinion in Merit Insurance Co. v. Leatherby Insurance Co., 714 F.2d 673, 680 (7th Cir. 1983).

The dispute turns on the meaning of “evident partiality” in 9 USC 10(a)(2): whether that term requires that an undisclosed relationship that the arbitrator had with a party, witness, or counsel (as in Positive Software Solutions) must be beyond a “trivial or insubstantial” prior relationship in order to justify vacating an award (as the majority of the Fifth Circuit en banc held), or whether the “very failure to disclose facts that might create a reasonable impression of the arbitrator’s partiality” justifies vacating the award (as the panel opinion had held).

Given the importance of the issue and the split in the lower courts on even the nature of Justice Black’s Commonwealth opinion, this might be a good candidate for the Supreme Court’s tiny, tiny docket.

Source for post: The Patry Copyright Blog

I wish I had a dime foir every time I have thought “I wish he didn’t say [or do] that.” If I had been the defense lawyer, Ronnell Wilson’s gesture of sticking out his tongue on hearing a federal jury’s decision to sentence him to death would have been one of those times. Now, I understand, to some extent, the frustration and fear that motivates these things. I also understand how much of a long shot death penalty appeals are in this day and age. But why do something that will necessarily brand you in the minds of the public, and not in a positive way?

The New York Times reports that the United States Tax Court has reaffirmed a ruling finding that a once prominent tax lawyer, now deceased, had engaged in atax evasion scheme. The case has a long and tortured history, having been once to the Supreme Court already, and likely headed there for a second time. The IRS victory before the tax court may turn out to be a hollow one. The Tax Court’s first adverse ruling wqas overturned by the Supreme Court after it was revealed that the judgment against the Defendants was incinsistent with another Tax Court judge’s preliminary report, which found no evasion. That report was not disclosed before the initial ruling finding evasion was issued. The Tax Court justified this by asserting that the report in question was a part of its internal “deliberative processes.” The Supremes disagreed and reversed. The Tax Court – seemingly as dogged as its friends at the IRS – has again found evasion. The case appears headed back to the Supreme Court. I won’t predict the ultimate result, but let us say at least that this matter combines two of the more pernicious forces in operation since the turn of the last century – the IRS, and federal criminal prosecutors.