December 16, 2010
As the Supreme Court accepts additional cases for review and issues new opinions, Gibson Dunn’s Supreme Court Round-Up is summarizing key developments at the Court. Since the last edition of the Round-Up, the Court has granted certiorari in ten new cases. Gibson Dunn is Counsel of Record for Petitioner in two of the newly granted cases, which are summarized below:
- Wal-Mart Stores, Inc. v. Dukes, No. 10-277 (9th Cir., 603 F.3d 571; cert. granted Dec. 6, 2010, limited to Question 1 presented by the petition and to the Question added by the Court). In a sharply divided 6-5 decision that conflicts with many decisions of the Court and other circuits, the en banc Ninth Circuit affirmed the certification of the largest employment class action in history. This nationwide class includes every woman employed for any period of time over the past decade, in any of Wal-Mart’s approximately 3,400 separately managed stores, 41 regions, and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications. The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Wal-Mart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company’s express anti-discrimination policy. The Questions Presented are as follows: (1) Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances. (2) Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).
- Microsoft Corp. v. i4i Limited Partnership, No. 10-290 (Fed. Cir., 598 F.3d 831; cert. granted Nov. 29, 2010). The Patent Act provides that "[a] patent shall be presumed valid" and that "[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity." 35 U.S.C. § 282. The Federal Circuit held below that Microsoft was required to prove its defense of invalidity under 35 U.S.C. § 102(b) by "clear and convincing evidence," even though the prior art on which the invalidity defense rests was not considered by the Patent and Trademark Office prior to the issuance of the asserted patent. The Question Presented is as follows: Whether the court of appeals erred in holding that Microsoft’s invalidity defense must be proved by clear and convincing evidence.
Spearheaded by former Solicitor General Theodore B. Olson, the Supreme Court Round-Up keeps clients apprised of the Court’s most recent actions. The Round-Up previews cases scheduled for argument, tracks the actions of the Office of the Solicitor General, and recaps recent opinions. The Round-Up provides a concise, substantive analysis of the Court’s actions. Its easy-to-use format allows the reader to identify what is on the Court’s docket at any given time, and to see what issues the Court will be taking up next. The Round-Up is the ideal resource for busy practitioners seeking an in-depth, timely, and objective report on the Court’s actions.
To view the Round-Up, click here.
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