Today in Supreme Court History: May 21, 2007

5/21/2007: Bell Atlantic Corp. v. Twombly decided.

The Roberts Court (2006)

Comments

[Dan Schiavetta]

Bell Atlantic v. Twombly, 550 U.S. 544 (decided May 21, 2007): mere allegation of parallel conduct insufficient to state an antitrust claim by subscribers against local telephone companies created in the wake of the antitrust breakup of AT&T

Epic Systems Corp. v. Lewis, 584 U.S. 497 (decided May 21, 2018): Federal Arbitration Act bars Fair Labor Standards Act class actions by employees whose employment contracts have arbitration clauses despite the FAA’s exception for federal law violations

May v. New Orleans, 178 U.S. 496 (decided May 21, 1900): when imported bulk goods were opened and sold as separate packages (these were household goods such as towels, embroideries) they were no longer “imports” and therefore City’s tax assessment was not unconstitutional State-based tariff in violation of Import-Export Clause (art. I, §10, cl. 2)

In re Green, 369 U.S. 689 (decided May 21, 1962): picketer arrested for defying anti-picketing state court order should have been allowed a hearing to argue that contempt order was void because picketer’s grievance fell within NLRB’s exclusive jurisdiction

Wagner Electric Mfg. Co. v. Lyndon, 262 U.S. 226 (decided May 21, 1923): District Court appeal which should have gone directly to the Supreme Court (under 28 U.S.C. §238(a), now repealed) but was appealed to the Circuit Court would be decided directly by the Supreme Court instead of sending it back to the Circuit Court to transfer back to Supreme Court (a sensible course of action)

Baltimore & Ohio Ry. Co. v. ICC, 221 U.S. 612 (decided May 21, 1911): statute setting maximum hours of common carrier employees was properly within Commerce Clause power (even though business was mostly intrastate) and Interstate Commerce Commission was properly empowered by Congress to enforce it; requirement that carriers supply monthly reports of excess hours did not violate Fifth Amendment because privilege against self-incrimination is enjoyed by individuals, not corporations

Holder v. Martinez Gutierrez, 566 U.S. 583 (decided May 21, 2012): years that parent already resided in this country before child arrived do not count toward five-year minimum lawful presence requirement so as to cancel removal under 8 U.S.C. §1229(b)(a) (child, now young adult, subject to removal for drug offense)

Barnicki v. Vopper, 532 U.S. 514 (decided May 21, 2001): First Amendment protected broadcast of surreptitiously recorded cell phone call between teacher’s union officials during collective bargaining negotiations (distinguishing Pamela Anderson/Tommy Lee sex tape case, Michaels v. Internet Entertainment Group, 5 F. Supp. 2d 823, which involved matter of private concern)

Chaffin v. Stynchombe, 412 U.S. 17 (decided May 21, 1973): higher sentence imposed by jury on retrial is not “Double Jeopardy” because jury not informed of first conviction and sentence not due to vindictiveness (charge was robbery, sentenced to 15 years, lawyer thought he was doing client a favor by getting conviction thrown out due to incorrect jury instruction; retrial sentence was life imprisonment -- d’oh!!)

[ReaderY]

It’s interesting how we got from apretty much universal view that a corporation is essentially a creature of the state with no constitutiional rights of its own, as B&O RR v. ICC is consistent with, to a radically novel view that was presented as “originalist,” that a corporation is so fully a person it even has political and religious rights.

[Dilan Esper]

It's not an originalist point, but I think one way to see why that is right is to consider media corporations. I.e., does the New York Times lose its First Amendment rights by adopting a corporate form?

If not, why not? The answer has to be that taking a corporate form neither expands nor contracts constitutional rights, right?

But, you might say, that doesn't apply to the full panoply of constitutional rights, but why not? So if Union Pacific Railroad were a sole proprietorship, it would have due process rights if government sought to deprive it of its property. So then, it incorporates and suddenly there are no such due process rights?

It doesn't work.

I can argue that there might be specific exceptions where rights really are personal (i.e., it really doesn't make much sense to talk about a corporation's right against self-incrimination or right against excessive bail), but in general, the notion that corporations have constitutional rights seems correct to me.

[The Margrave of Azilia]

I'd say that in your NYT case, the Times should have standing to assert that flesh-and-blood editorial writers and advertisers have 1st Amendment rights which are discriminatorily violated by retaliating against the corporation through which the flesh-and-blood people tries to broadcast their message.

Just like an unpopular advocacy organization - say, the NAACP under Jim Crow - could assert the privacy rights of its flesh-and-blood members.

Or, for example, a corporation running a stadium could invoke the rights of people who want to hold rallies and speeches in that stadium despite retaliation against the corporation for those flesh-and-blood speakers' speeches.

etc.

[Dilan Esper]

All corporations are asserting the rights of stakeholders. A corporation's property rights, for instance, derive from its shareholders' property rights. That argument doesn't get you anywhere.

[David Nieporent]

Epic Systems Corp. v. Lewis, 584 U.S. 497 (decided May 21, 2018): Federal Arbitration Act bars Fair Labor Standards Act class actions by employees whose employment contracts have arbitration clauses despite the FAA’s exception for federal law violations

First, the holding isn't that the FAA itself bans class actions; the holding is that the FAA renders enforceable an arbitration clause that bans class or collective¹ actions. If the arbitration clause doesn't do so, neither does the FAA; you can have a class or collective action in arbitration. Second, there is no such FAA exception for federal law violations, and that wasn't at issue. What was at issue was the NLRA's protection of "concerted action" by employees, and whether that meant that class/collective actions couldn't be banned at all.

TL;DR: The issue was whether the NLRA overrode the FAA to protect class actions even when employees had agreed to pursue individual relief in arbitration.

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¹Note that FLSA cases are never class actions; only the state labor law claims would be class actions. The FLSA has a different procedure called a collective action.

[Dan Schiavetta]

I did read the whole thing, and though I like Gorsuch's clear writing style, I took the shortest possible summary (which is true as far as it goes) by rephrasing Ginsburg's dissent:

"Does the Federal Arbitration Act permit employers to insist that their employees, whenever seeking redress for commonly experienced wage loss, go it alone, never mind the right secured to employees by the National Labor Relations Act 'to engage in ... concerted activities' for their 'mutual aid or protection'? § 157. The answer should be a resounding 'No.'" (Id. at 526.)

[Noscitur a sociis]

The problem is that in rephrasing, you changed things that Ginsburg stated accurately (if tendentiously) to things that were not accurate.

[Dan Schiavetta]

Will rephrase. Thanks.

[SMP0328]

Baltimore & Ohio Ry. Co. v. ICC, 221 U.S. 612 (decided May 21, 1911): statute setting maximum hours of common carrier employees was properly within Commerce Clause power (even though business was mostly intrastate) and Interstate Commerce Commission was properly empowered by Congress to enforce it; requirement that carriers supply monthly reports of excess hours did not violate Fifth Amendment because privilege against self-incrimination is enjoyed by individuals, not corporations

Is the bolded portion still good law in light of Citizens United v. FEC (2010)? That decision held that people functioning through the corporate form retained their free speech rights. It appears to me that the same logic would apply to the right against self-incrimination.

[Dan Schiavetta]

Sometimes corporations are “persons”, sometimes they are not. It seems to be (how can I put this?) “situational”.

For the purpose of the Alien Tort Statute, they are not (and therefore can’t be sued). Jesner v. Arab Bank PLC, 2018.

Also, for the purpose of the Freedom of Information Act, they are not (and therefore are not entitled to the FOIA privacy exception. FCC v. AT&T, 2011.

But for the purpose of free speech in the context of political contributions, as you point out, they are.

[ReaderY]

I think historically the Supreme Court was pretty consistent that the constitution doesn’t protect corporations, as persons, although they might be treated as persons for statutory and common-law person.

I don’t think Citizens United was correct for that reason. I think Citizens United took exceptions that the Supreme Court had made to permit things like book publishers in corporate form, and turned it into a general rule that corporations have political rights to advocate their own interests, a rule that goes against the general background rule that corporations have no rights as such.

[David Nieporent]

If corporations didn't have constitutional rights — and Citizens United postdates that notion by a few hundred years — then the assets of the ACLU could be seized by the government. The NAACP's headquarters would be subject to warrantless searches. Apple could be denied the right to counsel as it's being prosecuted (in secret proceedings not open to the public) for antitrust violations. The NYT could be prosecuted over and over again for the same offense. Etc.

[Brett Bellmore]

The problem faced in Citizens United is that the government wasn't going after ADM engaged in false advertising. They were going after Citizens United, an org created specifically to advance it's members politics, for political speech. They were going straight for the very core of 1st amendment protections, when they were most important.

And then the government went and asserted that they could ban books... At that point it was all over, Citizens United HAD to win.

It's not like people form corporations for shits and giggles. They do it because the government's own legal system has made it extremely perilous to do anything collectively or at scale without forming a corporation. The government itself has forced a large fraction of 1st amendment activity to take place through corporations. It can't take advantage of that outcome it forced to escape being constrained by the Bill of Rights.

[Noscitur a sociis]

Is the bolded portion still good law in light of Citizens United v. FEC (2010)?

Yes. See, e.g., In re Grand Jury Empaneld on May 9, 2014, 786 F.3d 255 at n. 1 (3d Cir. 2015).

That decision held that people functioning through the corporate form retained their free speech rights. It appears to me that the same logic would apply to the right against self-incrimination.

The people who work for the corporation do retain their right against self-incrimination. It’s the collective corporate entity that doesn’t have any.

[SMP0328]

Yes. See, e.g., In re Grand Jury Empaneld on May 9, 2014, 786 F.3d 255 at n. 1 (3d Cir. 2015).

Thanks, although it is just one circuit.

The people who work for the corporation do retain their right against self-incrimination. It’s the collective corporate entity that doesn’t have any.

Wouldn't any document incriminating the corporation also at least one individual? That incriminating document could lead to further evidence against the individual (not that the government would ever admit the source of that further evidence).

[Noscitur a sociis]

Probably, but so what? The Fifth Amendment privilege is against incriminating yourself, not against incriminating anyone. Even if it could be asserted by corporations, it would only protect the disclosure of evidence that would incriminate the corporation, regardless of whether it might also incriminate someone else.

[CJColucci]

One wrinkle is the act of production doctrine. My corporation is subpoenaed for documents that, because of their content, would incriminate me. Maybe they are documents showing that my corporation has provided hookers to politicians in return for favors and that I arranged the assignations. If the company were IBM and some worker bee can produce the documents, that they will incriminate me is of no consequence. I lack standing to object to their production. But if I run a small shop and am the sole custodian of its records, my producing them, entirely apart from their contents, is incriminating because I am being compelled to say, in effect, the subpoenaed documents exist, I know where they are, and these are the documents you're looking for. In such situations, it is not uncommon for the custodian to claim act of production immunity and for a court to appoint a special custodian who will not be incriminated by producing the records to go in, look for them, and turn them over. The content of the records still incriminates me, but I have not been compelled to incriminate myself by the act of producing them.

[Noscitur a sociis]

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