Supreme Court May End Web Retailing As We Know It in South Dakota v. Wayfair, Inc.

The manner in which small businesses can easily solicit orders and sell merchandise over the internet may soon end. In its place, the Supreme Court may require a more regimented and costly scheme that may force many small businesses to go out of business or limit their sales to certain states. It all depends on the outcome of a recent case in the Supreme Court called South Dakota v. Wayfair, Inc. While Wayfair itself is not a small business, a decision in this case could adversely impact many small businesses that argue, like Wayfair, that they should have some presence in the state (and thus be a user of state services) before a state can impose a tax or tax collection duty on them. On the other hand, many larger businesses, local nonweb businesses and the states believe all businesses, whether in a state or not, should collect sales/use tax to even the playing field, and if some small businesses can’t hack it or handle the administrative or financial cost, so be it. This is the background on the issues at play in Wayfair.

Read the full Alert on the Duane Morris LLP website.

 

How Long Does a Ninth Circuit Civil Appeal Take?

So how long does a Ninth Circuit civil appeal take? Using the most recent statistics from the Administrative Office of the United States Courts published in its Judicial Business 2017 report for the fiscal year ending September 30, 2017, the median time from notice of appeal to decision in the Ninth Circuit was 22.8 months (and that is just the median time–half the appeals take longer.) (See Table B-4A to the report.) The next slowest circuit—the Third Circuit—handles civil appeals in just about the same length of time: 22.3 months from notice of appeal to final decision. (The Third Circuit’s disposition time is puzzling because it is usually closer to the median.) The 2017 median time from notice of appeal to decision across all Circuits is 12.1 months.

The Ninth Circuit is the largest circuit geographically, and it remains the busiest, with 11,096 appeals filed in the year ending September 30, 2017. The next busiest circuit—the Fifth—had 7,099 appeals filed in the same period. Measured by matters terminated on the merits per active judge and per panel, however, the Ninth Circuit ranked third among the circuits for the year ending September 30, 2017, with 463 merits-based terminations per judge and 771 per panel. The circuit with the heaviest workload, using this same measurement, is the Eleventh Circuit, with 762 merits-based dispositions per judge and 904 per panel. The lowest terminations per active judge is DC Circuit, with 137 per judge, and 131 per panel.

Sixth Circuit Extends Title VII Gender Protections to Transgender and Gender Transitioning Employees

Momentum continues to build behind the expansion of protections because of “sex” under Title VII of the Civil Rights Act of 1964. Less than two weeks after the en banc U.S. Court of Appeals for the Second Circuit issued its opinion in Zarda v. Altitude Express, Inc., holding that Title VII prohibits sexual orientation discrimination, the Court of Appeals for the Sixth Circuit (with jurisdiction over Kentucky, Michigan, Ohio and Tennessee) held in Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, Inc. that Title VII prohibits employers from discriminating on the basis of transgender and gender transitioning statuses.

At present, federal courts in Connecticut, Illinois, Indiana, Kentucky, Michigan, New York, Ohio, Tennessee, Vermont and Wisconsin recognize expanded protections because of “sex” under Title VII. In contrast, federal courts in Alabama, Florida and Georgia do not recognize such protections. This split of authority likely will remain, and may even deepen if other circuit courts address these issues, until the Supreme Court resolves the matter.

To read the full text of this Duane Morris Alert, please visit the firm website.

The Record and Matter Outside It

Thomas Newman A fundamental tenet of appellate practice is that the rights of the litigants are to be determined solely on the basis of materials contained between the covers of the record on appeal. With some rare exceptions discussed below, it is a serious breach of appellate decorum to refer to matters outside the record. Counsel who do so run the risk of being reprimanded by the court during oral argument and in a subsequent published opinion.

References in briefs to material not contained in the record may be stricken on motion made by the opposing party and, if granted, this may blemish the offending counsel’s reputation for integrity and reliability before the panel that will decide the appeal. The court may also deny costs to a prevailing party whose brief contained references to matters outside the record. Topal v. Pace University, 167 A.D.2d 387 (2d Dept. 1990) (“since the appendix to the defendant’s brief contains documents dehors the record, the defendant is denied costs on appeal”). This may amount to a significant loss for the prevailing party, far in excess of the $250 statutory costs (CPLR §8203[a]), because the party awarded costs is also entitled to recover its taxable disbursements, including the reasonable cost of printing the record on appeal and briefs. CPLR §8301(a)(6),

It is also improper to annex to a brief affidavits or exhibits that were not presented to the trial court and properly made part of the record on appeal. In City of New York v. Grosfeld Realty Co., 173 A.D.2d 436 (2d Dept. 1991), the court “note[d] with disfavor the attempt on the part of the appellant’s attorneys to submit on this appeal an affidavit specifically rejected by the Supreme Court and, therefore, not properly part of the record on this matter.” The First and Second Departments expressly prohibit the attachment of unauthorized materials to an appellate brief. Rule 600.10(d)(1)(iii) of the First Department provides that “[u]nless authorized by the court, briefs to which are added or appended any matter, other than specifically authorized by this rule, shall not be accepted for filing.” The rule permits an addendum containing “statutes, rules, regulations, etc.” Rule 600.10(d)(1)(i). In the Second Department, Rule 670.10.3(h) similarly provides what materials may be included in an addendum to the brief, e.g., decisions, statutes, cases, etc., cited in the brief that are not published or otherwise readily available, and states that “[u]nless otherwise authorized by order of the court, briefs may not contain maps, photographs, or other addenda.”

To read the full text of this article by Duane Morris partner Thomas R. Newman and Steven J. Ahmuty, Jr.,  originally published in the New York Law Journal, please visit the Duane Morris website.

How Long Does a California Civil Appeal Take?

Based on the 2017 California Court Statistics Report, the statewide median time from the notice of appeal in a civil case to the filing of the Court of Appeal’s opinion is 506 days (about 17 months), with 90% of appeals processed within 842 days (28 months). But the median times differ substantially between California’s six appellate districts, and even between divisions within districts. Currently, the fastest California appellate court is Division 5 of the Second District in Los Angeles, with a median time of 404 days to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in Division Five are processed in 622 days.

At the other end of the spectrum is currently the Sixth District in San Jose, with a median time of 731 days (a little over two years) to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in the Sixth District are processed in 1,168 days (a little over 3 years).

The complete 2017 Court Statistics can be found here.

And while we’re discussing statistics, what are your chances for success on appeal? For civil appeals terminated by a written opinion in FY 2015-16, 17% were reversed. And if you decide to seek review in the California Supreme Court, less than 4% of petitions for review were granted by the Supreme Court in 2015-16.

Robert M. Palumbos Appointed Co-Chair of the Philadelphia Bar Association Appellate Courts Committee

Rob PalumbosDuane Morris partner Robert M. Palumbos has been appointed co-chair of the Philadelphia Bar Association’s Appellate Courts Committee.  Mr. Palumbos’ practice includes appellate and commercial litigation, and his appellate work covers a wide range of legal areas, such as RICO, corporate governance, administrative agency law, real estate and insurance coverage.

Mr. Palumbos is also vice chair of the Pennsylvania Supreme Court’s Appellate Court Procedural Rules Committee.

First Circuit Rejects Seventh Circuit’s Approach to Rejection of Trademark Licenses: Licensees Retain No Post-Rejection Trademark Rights

In one of the first decisions issued this year by the United States Court of Appeals for the First Circuit, the court addressed an issue of first impression. In Mission Products Holdings, Inc. v. Tempnology, LLC, n/k/a Old Cold LLC, the First Circuit held that the omission of trademarks from the definition of “intellectual property” in Section 101(35A) of the Bankruptcy Code, as incorporated by Section 365(n), leaves a trademark licensee with nothing more than a claim for damages upon the rejection of its license under Section 365(a). In so holding, the First Circuit joined the majority of bankruptcy courts that have addressed the issue and rejected the view adopted by the United States Court of Appeals for the Seventh Circuit.

To read the full text of this Alert, please visit the Duane Morris website.

Supreme Court to Review Sales Tax Physical Presence Standard; More States Pass Reporting Laws on Remote Sellers

The Supreme Court of the United States has accepted for review the case of South Dakota v. WayfairInc., et al, in which the state of South Dakota has challenged the continued viability of its 1992 Quill Corp. v. North Dakota decision that required some physical presence of a remote seller in a state before a state could impose its sales tax collection obligations on the seller. The Supreme Court in 1992 held it was up to Congress to change the test. In this new case, the South Dakota Supreme Court held that South Dakota’s attempt to legislatively override Quill was in violation of the law. By hearing the case, the U.S. Supreme Court will now decide whether to change the law or continue to allow the physical presence standard to stand, until and unless the Congress decides to change it. This decision could have far-reaching effects on interstate commerce, especially impacting internet sellers.

To read the full text of this Alert, please visit the Duane Morris website.

U.S. Supreme Court Denies Review in Title VII Sexual Orientation Case

Last month, on December 11, 2017, the U.S. Supreme Court denied the petition for certiorari in Evans v. Georgia Regional Hospital et al., a high-profile case asking the Justices to decide whether the prohibition in Title VII of the Civil Rights Act of 1964 against discrimination “because of . . . sex” encompasses discrimination based on sexual orientation. The denial of certiorari means that Title VII’s protections against workplace discrimination will remain subject to conflicting interpretations and enforcement from coast to coast. Continue reading U.S. Supreme Court Denies Review in Title VII Sexual Orientation Case

When Tolling Ends for Class Members: The Seventh Circuit Expands the Scenarios When Class Members Lose the Benefits of Tolling

Class actions are vexing for defendants. The exposure can be large and the litigation can become very complex. One way to defeat a class action is on statute of limitations grounds. However, in the seminal case on statutes of limitations in the class action context, American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), the Supreme Court held when a plaintiff files a complaint on behalf of a proposed class, and where certification is denied because of the plaintiff’s failure to demonstrate that “the class is so numerous that the joinder of all members is impracticable,” the statute of limitations for the claim is tolled for each member of the class. Continue reading When Tolling Ends for Class Members: The Seventh Circuit Expands the Scenarios When Class Members Lose the Benefits of Tolling