Supreme Court Update
Posted on October 5, 2020
Today is the first day of the Supreme Court’s October 2020 term. Unfortunately, the Court denied my petition for cert. in the Changzhou SinoType case. Of course, “petition denied” is always the statistically likely outcome, but I felt that we gave this as good a shot as we could, and I and others more knowledgeable about SCOTUS than I thought that the petition had a reasonable chance of success. I am grateful to the amici who weighed in on my client’s side, and to their counsel. I will be on the lookout for another case presenting this issue (and of course, if you know of one, please let me know!)
On the brighter side, the Court denied the petition in New England Teamsters & Trucking Industry Pension Fund v. Sun Capital Partners III, LP, an important multi-employer pension plan ERISA case where I was counsel (not counsel of record) to the respondent.
There is a pending petition that I want to call to your attention: World Programming Ltd. v. SAS Institute. According to the petition, in order to incentivize a judgment debtor to pay a US judgment, the lower courts enjoined it from selling software for use in the US until the judgment is paid. The asserted source of the court’s authority was the All Writs Act. The question is whether you can use the All Writs Act in this way, or whether a judgment creditor is limited to the methods provided by FRCP 69, viz., a writ of execution or other means of enforcement prescribed by the relevant state law, to enforce a judgment. My preliminary view is that the petitioner is right on the merits. the Act isn’t just a license to make whatever orders the court thinks best. It’s a residual source of authority to protect the court’s jurisdiction. I think that in equity, if a party was in contempt of an injunction, a court would have authority to compel compliance by all kinds of creative means. But a money judgment at common law is just a declaration that party A owes a certain amount of money to party B, and it’s enforced primarily by a writ of execution or other established writs and procedures. “The forms of action may be dead, but they rule us from their graves.” Anyway, this is one to keep your eyes on.