Public Citizen in the Supreme Court

Public Citizen attorneys were involved in several cases before the Supreme Court during its 2017 term (July 2017-June 2018), including these:

Jon Husted, Ohio Secretary of State v. A. Philip Randolph Institute

The state of Ohio has initiated a program of purging its voter rolls by sending notices to voters who have not voted in two elections, and then deregistering them if they do not respond to the notice and do not vote within the timespan of the next two general elections following the notice. Under the National Voter Registration Act, states are prohibited to use non-voting as a basis for deregistering voters, though they are permitted to use a similar method to eliminate voters when they have reason to believe they have moved out of the jurisdiction in which they are registered. Two Ohio organizations and an Ohio voter who was purged from the rolls for not voting even though he had not changed his residence challenged Ohio’s program, and the U.S. Court of Appeals for the Sixth Circuit ultimately held that Ohio’s actions violated the NVRA. Ohio’s Secretary of State successfully petitioned for review of the decision by the U.S. Supreme Court. The United States Justice Department, which had previously supported the challengers’ reading of the statute, switched sides and filed a brief supporting the Ohio Secretary of State. Public Citizen filed an amicus curiae brief explaining that the United States’ new arguments distort applicable principles of statutory interpretation.

National Labor Relations Board v. Murphy Oil

In quick succession, the Supreme Court received four petitions for certiorari raising the question whether arbitration agreements that ban collective proceedings violate the federal labor laws’ protection of concerted worker action. The petitions reveal an irreconcilable conflict among the circuits, and the issue is pending in at least five more circuits. The intercircuit conflict and the importance of the issue make it likely that the Court will agree that the issue merits review. The question for the Court is not so much whether to grant certiorari as which petition to grant.

Public Citizen submitted an amicus brief in support of the NLRB’s petition to explain why this case is the most appropriate of the four cases for resolving the conflict among the circuits over whether arbitration agreements that bar class actions infringe workers’ right to engage in concerted activity under the National Labor Relations Act. The Court granted three of the petitions, including the NLRB’s petition.

Public Citizen then submitted an amicus brief on the merits, explaining that the FAA does not require enforcement of provisions of an arbitration agreement that infringe workers’ statutory rights to engage in concerted activity and that the FAA is best read together with the NLRA and NLGA to preserve workers’ right to engage in concerted activity.

Cyan v. Beaver County Employees Retirement Fund

This case involves the question whether a provision of the Securities Litigation Uniform Standards Act of 1998 ("SLUSA") eliminated state courts’ longstanding concurrent jurisdiction over class actions that raise only claims under the Securities Act of 1933. In a petition-stage amicus curiae brief, the government argued that, although SLUSA did not make such a change, other provisions of the statute eliminated the so-called “removal bar” that had previously prohibited defendants from removing such cases from state to federal court. At the merits stage, Public Citizen filed an amicus brief arguing that the statute allowed removal only of class actions containing certain state-law claims, not those that only included Securities Act claims.

Ohio v. AmEx

Through contracts with the merchants who accept American Express cards, AmEx prohibits merchants from showing a preference for cheaper credit cards (like Visa or MasterCard) or offering their customers discounts or incentives to use those cards. In 2010, the federal government and a group of states went to court, charging AmEx with a violation of the Sherman Act antitrust law, which prohibits agreements that restrain trade. After a seven-week trial, the district court held that Amex’s merchant restraints suppress competition in violation of the Sherman Act. The U.S. Court of Appeals for the 2nd Circuit reversed, holding that the plaintiffs would also have to show that the anti-competitive effects outweighed the benefits – such as “cash-back” rewards and airline miles – to AmEx cardholders. Ohio, one of the plaintiffs, sought Supreme Court review. The question before the Court is whether the government's showing that American Express' anti-steering provisions stifle price competition on the merchant side of the credit-card platform suffices to prove anti-competitive effects and thereby shifts to American Express the burden of establishing any pro-competitive benefits from the provisions. Public Citizen joined an amicus brief explaining that consumer interests are undermined by anticompetitive restraints against merchants, such as the restraints at issue here.

Gill v. Whitford

This case challenges the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011. A federal court struck down the plan on the basis that violated the Constitution because it was the product of partisan gerrymandering. The lower court ruled in favor of the challengers, and the State sought review in the U.S. Supreme Court.  The questions before the Court include whether claims of partisan gerrymandering are justiciable and whether the district court correctly held that compliance with traditional districting criteria is not a safe harbor that precludes any possibility of liability for partisan gerrymandering.

Public Citizen joined an amicus brief in support of the respondents, authored by attorneys at Lowenstein Sandler LLP. The brief argues that entrenchment through severe partisan gerrymandering violates fundamental American democratic principles of representativeness and accountability in government and asks the Court to set limits on partisan gerrymandering.