Commentary and Analysis Tag

In the first case tomorrow, No. 05-998, United States v. Resendiz-Ponce, the Court will consider whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error, or is instead a structural error requiring the automatic reversal of the defendant’s conviction. If the harmless error/structural error question sounds familiar, it’s because the Court considered a similar question last Term in United States v. Gonzalez-Lopez. In that case, the Court held that a district court’s denial of a criminal defendant’s right to be represented by his counsel of choice constituted structural error. Tomorrow, Deputy Solicitor General Michael R. Dreeben – arguing on behalf of the United States – will seek to distinguish the case before the Court from Gonzalez-Lopez, while Atmore L. Baggot of Apache Junction, Colorado – arguing on behalf of respondent Juan Resendiz-Ponce – will try to convince the Court that his client’s case presents precisely the same kind of error present in Gonzalez-Lopez.

A Norwegian shipping company's energetic legal and public relations campaign to stave off a criminal antitrust trial has become a case study in the Supreme Court on the doctrine of mootness. In its simplest form, the mootness question in a case the Court will consider on Oct. 27 turns on whether a criminal indictment of a company that is trying to head off any such charges is enough to moot the company's case, when company executives are still at risk of new but not yet filed charges. But this case also provides the first test of the Justice Department Antitrust Division's freedom to withdraw a promise of immunity to a company, and then seek to end the controversy over that authority by bringing an indictment and suggesting mootness. The Norwegian firm, Stolt-Nielsen, S.A., is the first company to be drummed out of the Antitrust Division's "Corporate Leniency Program" since that program began in 1993. Thus, the lingering dispute is of signal importance to antitrust law. The company's pending appeal to the Supreme Court (Stolt-Nielsen, S.A., et al., v. U.S., docket 06-97) seeks -- if the controversy can be kept alive -- to test whether the federal courts have any authority to hear a challenge to such a withdrawal of a promise of leniency. The Third Circuit Court said no; but the company reads a Seventh Circuit Court ruling in 1998 as saying yes. Although there is disagreement between the two sides on just how deep or certain that circuit conflict is, the underlying issue of court review of the withdrawal of immunity seems significant enough that it might attract the Justices' interest. But the government's suggestion of mootness in the case has complicated Stolt-Nielsen's path to an answer to that separation-of- powers dispute. For more than two years, company attorneys have been pressing their client's cause in the courts. Recently, the company's publicists have been working the press to get its attention as the controversy ran on. The Supreme Court, too, has been in on the preliminaries and now awaits a second turn.

Perhaps the most interesting question in Norfolk Southern Railway Company v. Sorrell, (Docket 05-746, petition here) is whether the Court will decide the case at all. The case will be argued in an unusual afternoon argument session on Tuesday, October 10. Carter Phillips of Sidley Austin Brown & Wood will argue for petitioner. Mary Perry of Schlicter Bogard & Denton will argue for respondent. [Disclosure: Howe & Russell consulted with respondent in this case briefly after cert. was granted, but played no role in the writing of the brief]. The Statute and the Facts The case involves a question regarding the standards of causation under the Federal Employer's Liability Act (FELA) which, despite its name, governs the liability of railroads (not federal employers) for the injuries sustained by their workers on the job. Respondent Timothy Sorrell was injured when the truck he was driving for petitioner Norfolk Southern went off the road and rolled over. Sorrell said he was essentially forced off the road by another Norfolk Southern truck, but the railroad said the accident was at least in part Sorrell's fault because he unnecessarily pulled his truck too far off the road to let the other driver pass.

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The following argument preview was written by Scott Rhoades of Akin Gump. On Wednesday, October 4, the Court will hear arguments in MedImmune, Inc. v. Genentech, Inc. et al. (No. 05-608). The question presented in this case is whether Article III’s grant of jurisdiction implemented in the “actual controversy” requirement of the Declaratory Judgment Act, 28 U.S.C. § 2201(a), requires a patent licensee to refuse to pay royalties and commit material breach of the license agreement before suing to declare the patent invalid, unenforceable, or not infringed. In particular, the Court will decide whether a patent licensee, in good standing, may seek a declaratory action to challenge the validity and enforceability of the licensed patent. John G. Kester of Williams & Connolly LLP will argue on behalf of the petitioner. He will share his time with Deanne Maynard, Assistant to the Solicitor General, who will argue on behalf of the United States as an amicus in support of the petitioner. Maureen E. Mahoney of Latham & Watkins will argue on behalf of the respondents. Facts Respondents Genentech, Inc. and the research hospital City of Hope are the owners to two patents, United States Patents Nos. 4,816,567 (the `567 Patent) and 6,331,415 (the `415 Patent). Since 1997, petitioner MedImmune, Inc. was licensed by Genentech under the `567 Patent and any future patent(s) that might issue from a related patent application directed toward the same technology (this application ultimately issued in December 2001 as the `415 Patent). MedImmune paid and has continued to pay the license royalties to Genentech on both patents, thus maintaining its status as a licensee in good standing. MedImmune did object to the submission of royalties under the `415 Patent and filed a declaratory judgment action in the Central District of California requesting a declaration that the `415 Patent was invalid or unenforceable. The district court held that MedImmune could not bring a declaratory action to challenge the validity and enforceability of the `415 Patent as it was a licensee in good standing and did not have a reasonable apprehension of suit. The district court reached this conclusion by applying the Federal Circuit’s decision in Gen-Probe, Inc. v. Vysis, Inc. MedImmune appealed the district court’s decision to the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit affirmed, holding that since MedImmune was under no threat or apprehension of suit, it did not have standing to bring a declaratory challenge to the `415 Patent. The Federal Circuit noted that MedImmune concedes that it is free of apprehension of suit as it is paying royalties to avoid the risk and possible consequences of a successful infringement suit by Genentech. In reaching its decision, the Federal Circuit agreed with the district court that Gen-Probe was determinative. MedImmune then petitioned for cert., which the Supreme Court granted on February 21, 2006.