U.S. Supreme Court developments of interest in four cases

A few more recent developments of interest from the U.S. Supreme Court:

• On February 24, 2014, the Court issued a GVR order (grant, vacate and remand) in CarMax Auto Superstores California, LLC v. Fowler, No. 13-439.  In this case, the California Court of Appeal (Second Appellate District, Division One), in an unpublished opinion, reversed the trial court's order compelling arbitration in a wage and hour class action.  Fowler v. CarMax, Inc., 2013 WL 1208111 (Cal. Ct. App. Mar. 26, 2013).  That opinion concluded, among other things, that Concepcion did not overrule Gentry v. Superior Court, 42 Cal.4th 443 (2007) (discussed in this blog post).  The California Supreme Court denied review, but now the U.S. Supreme Court has vacated the decision and directed the Court of Appeal to reconsider the matter in light of American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013). 

• On February 26, 2014, the Court requested a response from the respondent, Moreno, in Sonic-Calabasas A, Inc. v. Moreno, No. 13-856.  The cert. petition challenges the California Supreme Court's decision in Sonic-Calabasas A, Inc. v. Moreno, 57 Cal.4th 1109 (2013) (discussed in this blog post).  The federal high court issued a GVR order the last time Sonic-Calabasas filed a cert. petition in this case, which was in 2011.  That time, the case was remanded for further consideration in light of Concepcion.

• On March 10, 2014, the Court invited the Solicitor General to file a brief expressing the views of the United States in Bank of America, N.A. v. Rose, No. 13-662.  The cert. petition seeks to overturn the California Supreme Court's decision in Rose v. Bank of America, N.A., 57 Cal.4th 390 (2013) (discussed here).   See this blog post for links to some of the briefs filed in the federal proceeding.

• On March 10, 2014, the Court granted cert. in Public Employees' Retirement System of Mississippi v. IndyMac MBS, Inc., No. 13-640, after relisting the case twice.  This case involves American Pipe tolling, and this is the question presented according to the U.S. Supreme Court's website: 

In American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), this Court held that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Id. at 554. Section 13 of the Securities Act of 1933—titled "Limitation of actions"—provides, in relevant part, that "[i]n no event shall" an action under § 11 of that Act "be brought ... more than three years after the security was bona fide offered to the public, or under [§ 12] (a) (2) ... more than three years after the sale." 15 U.S.C. § 77m. 

The question presented is:  Does the filing of a putative class action serve, under the American Pipe rule, to satisfy the three year time limitation in § 13 of the Securities Act with respect to the claims of putative class members?

The Second Circuit held last June that American Pipe tolling did not apply. Police and Fire Retirement System of City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95 (2d Cir. 2013).  The SCOTUSblog case page has links to the briefs filed to date.

Comments

[Elliot Silverman]

For the U.S. Supreme Court to grant cert. in an unpublished California Court of Appeal case is very unusual. Ultimately, I don't see how Gentry will be able to survive American Colors.