On June 28, 2024, the Supreme Court of the United States issued a landmark decision overturning its prior decision Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., et al., 467 U.S. 837 (1984) (“Chevron”). Loper Bright Enterprises, et al. v. Raimondo Secretary of Commerce, et al., and Relentless Inc., et al. v. Department of Commerce, et al., 603 U.S. ___ (2024). For the past 40 years, Chevron mandated that, when a statute does not expressly delegate authority to an administrative agency on a particular issue or question, courts defer to a federal agency’s interpretation of ambiguous statutes which the agency is charged with administering, if such interpretation was “permissible,” which has generally been interpreted to mean reasonable. There has been some subsequent narrowing of the scope of Chevron deference by the Supreme Court, for example to agency interpretations reached through formal proceedings with the force of law (see United States v. Mead Corp., 533 U. S. 218, 230 (2001)). In a 6-3 ruling delivered by Chief Justice Roberts, the Supreme Court expressly overruled Chevron, holding that the Administrative Procedure Act (“APA”) requires courts to exercise independent judgment in determining whether a federal agency has acted within its statutory authority, and that courts may not defer to an agency’s interpretation of the law merely because a statute is ambiguous. Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett joined the Chief Justice’s opinion.

On January 23, 2023, the United States Supreme Court dismissed the writ of certiorari as improvidently granted in a case that asked the Court to consider how to determine the application of attorney-client privilege to so-called “dual-purpose” communications, i.e., communications that reflect both legal and non-legal advice.  In re Grand Jury, No. 21-1397, slip op., 589 U.S. ___ (2023).  As we covered in a previous post, the Court granted a petition for certiorari to review a Ninth Circuit decision that held that the “primary purpose” should apply, which the Ninth Circuit stated requires the court to look to whether the primary purpose of the communication was to give or receive legal advice.  The Ninth Circuit had expressly left open whether the test should focus on determining whether “a primary purpose” or “the primary purpose” is seeking or providing legal advice.  In re Grand Jury, 23 F.4th 1088, 1091-92, 1094 (9th Cir. 2022).

On January 9, 2023, the United States Supreme Court heard oral argument in In re Grand Jury, No. 21-1397, a case with potentially far-reaching implications concerning the application of the attorney-client privilege to so-called “dual-purpose” communications, i.e., communications that reflect both legal and non-legal advice.

On March 29, 2021, the United States Supreme Court heard oral argument in Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System, which we have discussed in prior updates.  The case raises two questions in the context of class certification in a Section 10(b) case:  (i) whether a court can take into account the generic nature of alleged misstatements in a securities fraud class action in assessing whether they had any impact on the price of the stock, and (ii) who bears the burden of persuasion concerning reliance on the alleged misstatements, after a plaintiff has invoked the presumption of classwide reliance (under the Supreme Court’s decision in Basic Inc. v. Levinson) and the defendant has come forward with evidence to rebut that presumption.  

On June 29, 2020, the United States Supreme Court, in a 5-4 decision authored by Chief Justice Roberts, held that the structure of the Consumer Financial Protection Bureau (“CFPB”), which permitted the President to remove the CFPB’s Director only for “inefficiency, neglect of duty, or malfeasance in office,” violated the Constitution’s separation of powers.  The Court further concluded, however, that the provision was severable from the remainder of Title X of the Dodd-Frank Act (which created the CFPB), and thus the Court left the CFPB’s rulemaking, enforcement, and adjudicative powers intact.  Seila Law LLC v. CFPB, —U.S.—, 2020 WL 3492641 (June 29, 2020).  The background of this case was further discussed in our prior post.
 

On February 26, 2020, the United States Supreme Court, in a unanimous decision by Justice Samuel Alito, held that for purposes of assessing the appropriate statute of limitations for a breach of fiduciary duty claim under the Employee Retirement Income Security Act of 1974 (“ERISA”), a plaintiff does not gain “actual knowledge” of allegedly improper investments disclosed in documents that he receives but does not read or cannot recall reading.  Intel Corp. Inv. Policy Comm. v. Sulyma,—U.S.—, 2020 WL 908881 (2020).  Thus, under such circumstances, the applicable statute of limitations is ERISA’s general six-year statute of repose, which begins to run from “the date of the last action which constituted a part of the breach or violation,” rather than the three-year limitations period, which begins to run from the earliest date on which a plaintiff gains “actual knowledge” of the breach or violation.  Id. at *2.
 

Looking ahead, we preview cases currently pending before the Supreme Court—which have already been accepted for review by the Court—that may be of particular interest to readers of the Need-to-Know Litigation Weekly.  These cases pertain to various topics in Securities, Enforcement, and, as to one, arbitration.

On June 24, 2019, the United States Supreme Court, in an opinion by Justice Gorsuch, held that information that “is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy” is protected from disclosure under the Freedom of Information Act (“FOIA”) pursuant to Exemption 4 thereto, which protects “commercial or financial information obtained from a person and privileged or confidential.”  Food Mktg. Inst. v. Argus Leader Media, —U.S.—, 2019 WL 2570624 (June 24, 2019).  The Court thus reversed a decision of the Eighth Circuit that had required an additional showing that disclosure would cause “substantial competitive harm.” 

On June 24, 2019, the United States Supreme Court denied a petition for certiorari to review a decision from the United States Court of Appeals for the Ninth Circuit, which held that a foreign issuer that has no involvement in establishing or selling ADRs can be subject to liability under Section 10(b) of the Securities Exchange Act of 1934 as long as plaintiff purchased or sold the ADRs in a domestic transaction.  Toshiba Corp. v. Auto. Indus. Pension Trust Fund, et al., No. 18-486 (U.S. June 24, 2019).  Pursuant to its typical practice, the Court did not comment on its reasons for denying certiorari. 

On November 8, 2017, the Supreme Court of the United States, in a unanimous decision, held that not all deadlines for filing appeals are jurisdictional; instead, if a time limit on filing an appeal appears only in a court-made rule, and not in a statute, the limitation is a “claim-processing rule,” not a jurisdictional bar, and therefore can be waived or forfeited.  Hamer v. Neighborhood Hous. Servs. of Chicago, 583 U.S. —, 2017 WL 5160782 (2017).  On this basis, the Court vacated the Seventh Circuit’s dismissal of petitioner’s appeal for lack of jurisdiction, remanding for further proceedings.

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